author: PRESIDING JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DERRICK YOUNG, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—1729
    Opinion filed September 30, 1991.

      Law Office of Stuart V. Goldberg, of Chicago (Robert F. Nemzin, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Kevin T. Noonan, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Defendant, Derrick Young, appeals his conviction for possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(b)(2)), and raises the following issues for review: (1) whether the indictment should have been dismissed because of prosecutorial misconduct in the presentation of evidence to the grand jury; (2) whether defense counsel’s failure to seek dismissal of the indictment on the grounds of prosecutorial misconduct constitutes ineffective assistance of counsel; (3) whether he was substantially prejudiced because of preindictment delay; (4) whether he was denied due process of law because of the State’s failure to inform the defense prior to trial that the suspect controlled substance had been destroyed prior to the indictment; (5) whether he was denied effective assistance of counsel where defense counsel failed to conduct an independent inspection and chemical analysis of the suspect controlled substances and thereafter stipulated to the results of the State’s chemical tests; and (6) whether the State proved him guilty beyond a reasonable doubt of the offense of possession with intent to deliver more than 10 but not more than 30 grams of a controlled substance containing cocaine.

It is uncontroverted that pursuant to a search warrant of a single-family residence on September 25, 1986, the police recovered from the basement a brown paper bag containing three plastic bags and 58 white paper packets the State claimed was cocaine and two small handguns. In an upstairs bedroom where defendant, his girlfriend and son were present, the police recovered an Illinois Bell telephone bill in the defendant’s name.

Defendant was arrested and released on bond after a hearing. Defendant demanded a trial on October 22, 1986; however, on that date the court granted a continuance until December 10, 1986. On December 10, the State acknowledged that the lab report on the suspect controlled substance was unavailable and requested a continuance. The preliminary hearing court denied the State’s request for a continuance, but granted it leave to nol-pros.

On January 30, 1987, the lab report was completed, and on July 1, 1987, defendant was indicted by the grand jury. Thereafter, defendant filed a motion to dismiss the indictment which was denied by the trial court on November 20, 1987, following lengthy arguments on the ground of preindictment delay. On December 31, 1987, counsel for defendant filed a motion to inspect the physical evidence and to conduct an independent analysis of the substances; however, he later withdrew the request.

During the bench trial which began in February 1988, Chicago police officers testified about the details of the search of defendant’s home and the items that were recovered. Officer Wozniak stated that when confronted with the contraband, defendant admitted to him that all of the items belonged to the defendant and that no one else on the premises was involved.

The parties stipulated to the testimony of Chicago police chemist Moka that on January 30, 1987, she analyzed the contents of the brown paper bag by chemically examining the contents of one of the three plastic bags and 1 of the 58 paper packets. In her expert opinion, an amount of 1.86 grams tested positive for the presence of cocaine and the weight of the entire amount of the substance received by her was 16.87 grams. It also was stipulated to by the parties that the entire amount of the substance confiscated from defendant’s house had been incinerated by the police on April 21, 1987, pursuant to a Chicago police department procedure to “[dispose of (the substances) according to law.” The trial court then denied defendant’s motion for a directed verdict.

In his own defense, defendant denied knowledge and possession of the controlled substance and stated that he never told the police that it was his. Following closing arguments and the sentencing hearing, defendant was sentenced to eight years’ imprisonment.

Defendant’s first contention on appeal asserts error by the trial court in denying his motion to dismiss the indictment. Defendant argues that he suffered prejudice because of prosecutorial misconduct in presenting false and misleading evidence to the grand jury, because of defense counsel’s failure to seek dismissal on the basis of the prosecution’s misconduct and because of preindictment delay.

It is well settled that trial courts are authorized to dismiss an indictment where there is a clear denial of due process, even though this is not a statutorily authorized ground for dismissal. (People v. Lawson (1977), 67 Ill. 2d 449, 455, 367 N.E.2d 1244.) In ascertaining due process violations on a motion to dismiss an indictment, a court must proceed with restraint and dismiss the indictment only when the violation is clear and has been found with certainty. (People v. Shaw (1985), 133 Ill. App. 3d 391, 478 N.E.2d 1142.) A defendant who seeks dismissal of the indictment bears a heavy burden of showing actual and substantial prejudice to him. (People v. Haag (1979), 80 Ill. App. 3d 135, 140, 399 N.E.2d 384.) Defendant here contends that the suspect controlled substances which formed the basis of the July 1, 1987, indictment were destroyed by the police on April 21, 1987, and that prior to the destruction, only a portion thereof, 1.86 grams, had ever tested positive for the presence of cocaine. Thus, he urges that in presenting its evidence to the grand jury, the prosecution knowingly and willingly misrepresented that the chemical analysis conducted by the chemist determined the substances to be positive for cocaine in the amount of 16.87 grams. Moreover, the prosecution failed to inform the grand jury that the substances had been previously destroyed and were unavailable for use as evidence at trial.

Defendant asserts that he was prejudiced because the return of the indictment compelled him to defend against adverse evidence without ever having any opportunity for meaningful confrontation of the evidence by way of an independent inspection and chemical analysis. He further urges that the State’s failure to inform defense prior to trial that the substance had been destroyed denied him due process of law where he had filed a motion for discovery requesting a list of physical evidence that the State intended to use at trial. He continues that because the State suppressed evidence in the face of a defense request for production, he was deprived of an opportunity to defend his case on the basis of reasonable doubt as to possession of more than 10 grams and to seek plea negotiations with respect to a lesser offense. With respect to further error, defendant claims that defense counsel’s failure to seek dismissal of the indictment on the basis of prosecutorial misconduct constitutes ineffective assistance of counsel.

We have reviewed the grand jury transcription and the record below and find that the presentation of the evidence to the grand jury did not deprive defendant of his rights of due process. Officer Wozniak testified before the grand jury on the charge against defendant for the offense of possession of a controlled substance with intent to deliver cocaine, more than 10 grams but less than 30 grams, a Class 1 felony. The officer stated that a brown paper bag containing 58 “pony pak papers” and three small plastic bags, all containing white powder, suspect cocaine, and two small caliber guns were recovered from the basement of the location where defendant was arrested and the substances were sent to the crime lab. When asked by the prosecutor: “Did you find that chemist Moka, Chicago Police Department, analyzed those substances on January 30th, 1987 [sic] found those substances to be positive for cocaine in the amount of 16.87 grams?” Officer Wozniak stated: “That is true.” The grand jury then returned a true bill against defendant.

In determining whether to dismiss an indictment, a court will not consider the adequacy or sufficiency of the evidence (Costello v. United States (1956), 350 U.S. 359, 100 L. Ed. 397, 76 S. Ct. 406), except a challenge on the basis of wholly inadequate or incompetent evidence. (People v. Consago (1988), 170 Ill. App. 3d 982, 524 N.E.2d 989.) Our courts have determined that it is unnecessary that evidence be presented before the grand jury for each element of the offense charged in the indictment (People v. Shaw, 133 Ill. App. 3d 391, 478 N.E.2d 1142) as long as there is some evidence relative to the charge (People v. Rodgers (1982), 92 Ill. 2d 283, 290, 442 N.E.2d 240) and the indictment is valid on its face. (People v. Schulz (1987), 154 Ill. App. 3d 358, 506 N.E.2d 1343.) Guilt or innocence is to be determined at trial. People v. Creque (1978), 72 Ill. 2d 515, 382 N.E.2d 793.

When the sufficiency of an indictment has been challenged at trial, the standard of review is whether the indictment states the nature of the offense and adequately sets forth each of the elements of that offense. (People v. Clutts (1976), 43 Ill. App. 3d 366, 371, 356 N.E.2d 1367.) The record discloses that defendant here was charged with possession of more than 10 and less than 30 grams of cocaine. The record also discloses that the police chemist conducted a random sample testing of the suspect substances. The amount of the substance tested by the chemist weighed only 1.86 grams while the total amount of the substances recovered weighed 16.87 grams. Assuming the validity of the random testing (see People v. Kaludis (1986), 146 Ill. App. 3d 888, 497 N.E.2d 360) under the instant facts, it was not improper for the officer to testify that he found out that the substances tested positive for the amount of 16.87 grams. Furthermore, in applying the foregoing principles of law to the instant facts and even assuming that the propriety of the random testing is called into issue, as will be more fully discussed below, we believe that the prosecution’s representation, i.e., that 16.87 grams of cocaine were recovered from the defendant, made at the grand jury stage of the proceedings, was proper. Further, we have found nothing in the record to support defendant’s allegation of intentional deception by the State. As previously stated, because the indictment is but the formal charge and is not the trial on the merits, it does not require the degree and quality of proof necessary for conviction on the charge. People v. Bragg (1984), 126 Ill. App. 3d 826, 467 N.E.2d 1004.

Accordingly, we conclude that where the indictment here adequately informed defendant of the charge against him so that he could prepare a defense and guard against the possibility of future prosecutions for the same offense (see People v. Simon (1980), 91 Ill. App. 3d 667, 416 N.E.2d 285), the trial court properly denied his motion to dismiss the indictment. This court has held that even if some improper evidence may have been presented to the grand jury, the indictment is not invalidated where competent witnesses have testified before the grand jury. People v. Morgan (1988), 169 Ill. App. 3d 368, 523 N.E.2d 560.

We will briefly address defendant’s assertion regarding ineffective assistance of counsel. In order to establish ineffective assistance of counsel, defendant must demonstrate that counsel’s performance was deficient, and that but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Barnard (1984), 104 Ill. 2d 218, 470 N.E.2d 1005.) We believe that defendant’s argument that defense counsel should have moved to dismiss rather than stipulate to the chemist’s test results is without merit where defense counsel neither had filed a motion in limine to preserve the evidence nor to test the substance, where the later filed motion to inspect the physical evidence was withdrawn, and where in particular, the record shows the existence of competent testimony and circumstantial evidence, other than the physical presence of the suspect controlled substance, in and of itself, to sustain the indictment. Accordingly, we find that defense counsel’s failure to present a motion to dismiss the indictment on the grounds now urged by defendant does not fall below an objective standard of reasonableness, that but for the alleged error, the results of the proceeding with regard to the motion to dismiss the indictment would have been different.

We next address defendant’s dual contentions that the trial court erred in not dismissing the indictment against him since he suffered substantial prejudice because of preindictment delay and that the prejudice against him was compounded because of the State’s violation of the discovery rules in failing to inform the defense that the suspect substance had been destroyed. Prior to trial, defendant moved to dismiss the indictment, not on the grounds of prosecutorial misconduct, but on the basis that he was prejudiced by the State’s unreasonable and nondiligent delay in bringing the indictment against him. The trial court simultaneously entertained respective motions to dismiss pending indictments against several defendants. It found that defendant here had suffered only slight, if any, prejudice and denied the motion. In his brief, defendant urges that destruction of the substance caused him considerable prejudice as he was unable to confront the adverse evidence against him. He relies on People v. Taylor (1977), 54 Ill. App. 3d 454, 369 N.E.2d 573, for the proposition that the State has the duty to preserve some of the substance so that an independent chemical analysis can be made. The State counters that defendant’s argument must fail where he stipulated to the chemist’s expert testimony and where he failed to file timely motions to inspect the evidence for independent testing or to exclude the evidence. Additionally, Taylor is inapplicable here because therein the defendant presented a timely motion to preserve or inspect the recovered narcotics.

In order to prevail on a motion to dismiss an indictment based on allegations of delay between an alleged crime and indictment or arrest or accusation, the defendant must come forward with a clear showing of actual and substantial prejudice. (United States v. Marion (1971), 404 U.S. 307, 324, 30 L. Ed. 2d 468, 481, 92 S. Ct. 455, 465.) Here, similar to People v. Stinnett (1988), 166 Ill. App. 3d 1027, 1028, 520 N.E.2d 1204, the issue is whether the time between the defendant’s request for trial in October 1986 and subsequent State’s motion for nolle prosequi in December 1986 and the indictment of defendant in July 1987 is tolled for purposes of the speedy trial demand, as it is beyond the 160 days required by section 103—5(b) to bring to trial persons on bail or recognizance. (Ill. Rev. Stat. 1987, ch. 38, par. 103—5(b).) The answer is affirmative, as the nolle prosequi procedure terminates the pending charges against the defendant and requires the institution by the State of a new proceeding in order to prosecute for the dismissed offense. Stinnett, 166 Ill. App. 3d at 1028.

Accordingly, we conclude that where there was no charge pending against the defendant here and he was released from bond, the speedy trial provisions of section 103 — 5 do not apply.

With respect to defendant’s assertion of actual prejudice that resulted in the interim between the original arrest and the trial due to the police’s destruction of the substance and the State’s violation of discovery, we conclude that the State’s failure to retain the substance was not a violation of due process, as there is no indication in the record that the State destroyed the substance “ ‘in a calculated effort to circumvent the disclosure requirements established by Brady v. Maryland and its progeny.’ ” (Emphasis added.) (People v. Jordan (1984), 103 Ill. 2d 192, 211, 469 N.E.2d 569, quoting California v. Trombetta (1984), 467 U.S. 479, 488, 81 L. Ed. 2d 413, 422, 104 S. Ct. 2528, 2534; Killian v. United States (1961), 368 U.S. 231, 242, 7 L. Ed. 2d 256, 264-65, 82 S. Ct. 302, 308-09.) The United States Supreme Court has determined that unless a defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process. (Arizona v. Youngblood (1988), 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333.) Although we can agree with defendant’s contention that the evidence destroyed by the police possessed exculpatory value that was readily apparent, we believe that the significant evidence here was not the controlled substance itself; rather, the question becomes whether the results obtained from the samples in relation to the total amount of the substance involved were sufficient to prove defendant guilty beyond a reasonable doubt. Because of our disposition of the issue with regard to the sufficiency of the evidence to sustain defendant’s conviction, we need not directly address the alleged errors of counsel for failure to independently inspect the substance and stipulation to the chemist’s test results.

The general rule is that a chemist or technician need not test every capsule or every gram of a substance in order to give an opinion as to the whole. (People v. Games (1981), 94 Ill. App. 3d 130, 418 N.E.2d 520.) This rule is not without limitation and generally has been applied in cases where the contents of the containers or envelopes were combined before testing and the sample subjected to analysis was selected at random from the combined material (People v. Jackson (1985), 134 Ill. App. 3d 785, 481 N.E.2d 1222) or where testing was conducted in a random selection of the substance that was taken from each of the containers or bags. (See People v. Saldana (1986), 146 Ill. App. 3d 328, 496 N.E.2d 757; People v. Yosell (1977), 53 Ill. App. 3d 289, 368 N.E.2d 735.) We believe that the instant case falls within the exception as it is strikingly similar to the factual matrixes presented in People v. Hill (1988), 169 Ill. App. 3d 901, 524 N.E.2d 604, and People v. Ayala (1981), 96 Ill. App. 3d 880, 422 N.E.2d 127. In both Hill and Ayala, this court found that the defendants therein were not proved guilty beyond a reasonable doubt of the offense charged because the weight of the substances in bags that were not conclusively tested was counted by the trial court in determining the weight of the narcotics. Hill, 169 Ill. App. 3d at 911; Ayala, 96 Ill. App. 3d at 883.

In Hill, the court stated:

“Where there is a lesser included offense for possessing a smaller amount, the weight of the substances containing a drug is an essential element of a charge of possession. [Citation.] The weight of the substance containing the drug must therefore be proved beyond a reasonable doubt. [Citation.] Where separate bags or containers of suspected drugs are seized, a sample from each bag or container must be conclusively tested to prove that it contains a controlled substance. [Citations.]” (Hill, 169 Ill. App. 3d at 911.)

Like the Hill court, in our opinion, the tests performed here were insufficient to prove beyond a reasonable doubt that more than 10 but less than 30 grams of the seized powder in fact contained cocaine. Similarly, a test here existed which would have proved beyond a reasonable doubt whether the powder in the untested two plastic bags or 57 paper packets contained cocaine, yet it was uncontroverted that the confirmatory analysis was performed on only 1.86 grams of the powder although the total weight of the powder was listed as 16.87 grams. See Hill, 169 Ill. App. 3d at 913; accord People v. Maiden (1991), 210 Ill. App. 3d 390, 569 N.E.2d 120.

Accordingly, we find that under the present circumstances, defendant was not proved guilty beyond a reasonable doubt of possession with intent to deliver more than 10 but not more than 30 grams of cocaine (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(b)(2)), but was proved guilty of possession with intent to deliver less than 10 grams of cocaine. (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(c).) We reach this decision even though the parties stipulated to the expert testimony of the police chemist (cf. People v. Williams (1990), 200 Ill. App. 3d 503, 558 N.E.2d 261) because in the context of the entire record here, the intentions of the parties in stipulating to the testimony and the reason for defense counsel’s withdrawal of the request to test the substance are not readily ascertainable from the record.

For the reasons stated above, we modify the judgment of the circuit court convicting defendant of unlawful possession with intent to deliver of more than 10 but less than 30 grams of a controlled substance containing cocaine to a judgment convicting defendant of possession with intent to deliver less than 10 grams of a controlled substance containing cocaine. As modified, the judgment of the circuit court is affirmed, the sentence of eight years is vacated, and the maximum sentence of seven years is imposed. Ill. Rev. Stat. 1985, ch. 56½, par. 1401(c).

Affirmed as modified.

CAMPBELL and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BUCKLEY

license: Public Domain

text:
      In re S.D., a Minor (The People of the State of Illinois, Petitioner-Appellant, v. Carolyn Davis, Respondent-Appellee).
    First District (1st Division)
    No. 1—88—3433
    Opinion filed September 30, 1991.

      ‘ Patrick T. Murphy, Public Guardian, of Chicago (Yvonne M. Holte, Assistant Public Guardian, of counsel), for the People.
    Randolph N. Stone, Public Defender, of Chicago (John T. Kennedy, Assistant Public Defender, of counsel), for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Following an adjudicatory hearing in the circuit court of Cook Comity, the court dismissed the petition for the adjudication of wardship which alleged that the minor, S.D., was neglected based on an injurious environment. The office of the public guardian filed this appeal on behalf of S.D., arguing that the trial court erred when it failed to enter a finding of abuse after it had denied a motion for a directed verdict at the close of the State’s case and then heard no credible evidence to rebut the State’s prima facie case of abuse. S.D. further argues that the trial court’s decision was against the manifest weight of the evidence.

On March 31, 1988, the Illinois Department of Children and Family Services (DCFS) filed a petition for adjudication of wardship on behalf of S.D., alleging that S.D. was neglected in that his environment was injurious to S.D.’s welfare in violation of section 82—3(2)(b) of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 802—3(2)(b)). S.D.’s sister, Z.D., was also the subject of a similar petition. Both petitions alleged that Z.D., who was then two years old, had been sexually abused by her stepfather and that S.D. was living in the same home at which this abuse was taking place. S.D.’s and Z.D.’s parents were named as respondents on the petitions. The trial court placed the minors in the temporary custody of DCFS and appointed a guardian ad litem to represent them. The two petitions were consolidated and a trial on those petitions was held. The trial court noted that the father had defaulted and that the mother (respondent) was represented by appointed counsel.

Vernell Davis, the maternal grandmother of S.D. and Z.D., testified on behalf of the State. Davis testified that she did not see her grandchildren during the early winter months of 1988. Davis testified that she could recall an incident in which she and her daughter, respondent, went shopping and left S.D. and Z.D. at home with respondent’s husband, Robert Hillyard. When Davis and respondent returned home, Z.D. was crying, stated that she was hurt and pointed to her vaginal area. Davis suggested to respondent that Hillyard had been “messing” with Z.D. As far as Davis knew, respondent did nothing about this incident. Davis also testified that in March 1988, she accompanied respondent, Z.D. and S.D. to Children’s Memorial Hospital. While respondent and Z.D. were in an examining room, S.D. told Davis that one day when he arrived home from school, Hillyard let him in and went into a room where Z.D. was crying. When S.D. entered the room, he saw Hillyard on top of Z.D. Hillyard ordered S.D. out of the room.

A certified report of the medical examination conducted on Z.D. at Children’s Memorial Hospital on March 27, 1988, indicates that shortly after Hillyard moved into respondent’s home in November 1987, respondent noticed that Z.D. began having nightmares, refusing to allow respondent to clean her genital area, wetting her bed and experiencing the onset of enuresis. According to the report, respondent first suspected abuse was occurring at day care. During the medical examination Z.D. cried and guarded herself when the doctor attempted to remove her undergarments. The doctor was finally able to get Z.D. to comfortably open her legs, but Z.D. began crying as soon as the doctor touched her labia. The doctor found moderate erythema in the genital area and that Z.D.’s hymen was not intact. The report indicates that respondent suspected her husband of sexually abusing Z.D. According to the report, what prompted respondent to take Z.D. to the hospital was the fact that Z.D. complained of pain in her vaginal area and S.D.’s claim that he saw Hillyard on top of Z.D. with his pants down. The report also states that respondent was very confused about the sequence of events, but seemed to come up with more and more information as the questioning progressed.

At the close of the State’s evidence, respondent moved for a directed finding. The trial court denied the motion and specifically found that the evidence was “sufficient to establish a prima facie case of both abuse and neglect by a preponderance of the greater weight of the evidence.”

Respondent took the witness stand and stated that she was a certified nurse’s assistant. Respondent testified that after she took the children out of day care, Hillyard watched the children. After noticing that Z.D.’s behavior had significantly changed, respondent took her to a doctor in late 1987. The doctor was unable to determine whether Z.D. had been the victim of sexual abuse because Z.D. would not allow the doctor to examine her. In response to Z.D.’s behavior during his examination, that doctor made a report to DCFS; respondent did nothing. Respondent admitted that her mother, Davis, had often told respondent of her suspicions that Hillyard was sexually abusing Z.D.

The trial court found that the allegations of sexual abuse to Z.D. were unequivocally established and that the respondent’s claim that she was unaware of the situation for such a long period of time was “absolutely incredible.” The trial court continued Z.D.’s petition for a dispositional hearing. As to S.D.’s petition based on neglect due to an injurious environment, the trial court found no evidence of neglect apart from the abuse and neglect directed at Z.D. and dismissed S.D.’s petition.

The trial court’s decision to dismiss S.D.’s petition was appealed prior to the instant appeal. Respondent was never notified of the appeal and was, therefore, not represented in that appeal. On respondent’s motion, we withdrew the previous opinion of this court and set this matter for oral arguments at which she was represented and we reviewed this matter while taking into consideration new briefs which were submitted by the various parties and with the benefit of oral arguments. Our opinion is set forth below.

An adjudication of wardship, like all proceedings under the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1987, ch. 37, par. 801—1 et seq.), is brought only in the best interests of the children involved. (People v. McDonald (1989), 189 Ill. App. 3d 374, 545 N.E.2d 819.) The State must prove an allegation of neglect due to an injurious environment by a preponderance of the evidence. Ill. Rev. Stat. 1987, ch. 37, par. 802—18; In re Markus E. (1989), 183 Ill. App. 3d 693, 539 N.E.2d 344.

“Neglect” is generally viewed as a failure to exercise the regard that circumstances justly demand and encompasses willful as well as unintentional disregard of parental duties. (In re Stilley (1977), 66 Ill. 2d 515, 363 N.E.2d 820, citing People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 104 N.E.2d 769.) An “injurious environment” is, however, an amorphous concept which cannot be defined with particularity; therefore, each case should be reviewed considering the specific circumstances of that case. (In re Carlenn H. (1989), 186 Ill. App. 3d 535, 540, 542 N.E.2d 959, 962, citing In re Harpman (1986), 146 Ill. App. 3d 504, 511, 496 N.E.2d 1242, 1246.) The determination of neglect lies within the province of the trial court (In re B.K. (1984), 121 Ill. App. 3d 662, 460 N.E.2d 43), and its determination will not be disturbed by a reviewing court unless it is contrary to the manifest weight of the evidence. Stilley, 66 Ill. 2d 515, 363 N.E.2d 820.

In setting forth its findings, the trial court stated that In re Brooks (1978), 63 Ill. App. 3d 328, 379 N.E.2d 872, was not dispositive in this case. The Illinois appellate courts have, however, expanded upon the principles of Brooks in several other cases involving factual circumstances similar to the case at bar. For example, in In re Gray (1985), 131 Ill. App. 3d 401, 475 N.E.2d 1116, the court interpreted the Brooks holding as establishing that the fact that a minor child witnessed episodes of physical abuse of another child was, standing alone, sufficient to support a court’s finding that the parents were unfit and that it was in the best interest of the minors to be placed outside the parents’ home. (Gray, 131 Ill. App. 3d at 409, 475 N.E.2d at 1122.) The court in Gray upheld the trial court’s finding that the environment of three minors was injurious to their welfare based upon the fact that they had witnessed physical abuse against their stepsister. Gray, 131 Ill. App. 3d at 409, 475 N.E.2d at 1122.

In In re David D. (1990), 202 Ill. App. 3d 1090, 560 N.E.2d 966, after respondent moved for a directed finding with respect to David on the grounds that there was no testimony or evidence that showed his environment was injurious to him, the State argued that based upon Brooks, David’s environment was injurious to him because he was living in an environment where his sister was sexually abused even though there was no indication that David knew about or was exposed to the abuse of his sister. (David D., 202 Ill. App. 3d at 1092, 560 N.E.2d at 968.) The trial court dismissed David’s petition. On appeal, the first district found that the evidence of abuse of a sibling was sufficient to establish a prima facie case of neglect based upon an injurious environment to David and reversed the dismissal of David’s petition. (David D., 202 Ill. App. 3d at 1094, 560 N.E.2d at 968.) The facts in the case at bar are even more egregious because S.D. actually witnessed the sexual abuse of his sister by their stepfather.

Respondent argues that S.D. was not living in an environment injurious to his welfare because she took steps to learn the cause of his sister’s distress, accepted the fact that her husband was sexually abusing Z.D. and moved to protect Z.D. and S.D. by expelling her husband from the household and obtaining a protective order against him. These arguments are not supported by the evidence.

Respondent noticed behavioral changes in Z.D. shortly after Hill-yard moved into her household. When respondent initially took Z.D. to a doctor in late 1987, Z.D. had not been in day care for at least one month and was being watched by Hillyard while respondent was working. The doctor informed respondent that he could not determine whether Z.D. had been sexually abused because the child would not allow him to examine her. The doctor, not respondent, filed a report with DCFS. Apparently, after this visit to the doctor, respondent did nothing further to discover why Z.D. would not allow the doctor to examine her or why Z.D. exhibited such behavioral changes. Respondent was a certified nurse’s assistant at the time, thus presumably not ignorant of the fact that behavioral changes in a child coupled with her refusal to allow a doctor to examine her signal some sort of distress. Moreover, respondent admitted that her mother warned her that Hillyard was abusing Z.D. Therefore, respondent did not take appropriate steps to learn of the abuse, but rather, turned her back to the apparent abuse.

It took respondent at least SVz months to accept the fact that Hillyard was abusing her daughter. Respondent did not even go to the police. In fact, after Z.D. was examined and the sexual abuse was medically confirmed, Children’s Memorial Hospital called the police, who came and took respondent to the police station to file a report. Respondent made no real effort to remove the perpetrator from her home.

Respondent argues that “respectful weight must be given the consideration that the trial court had the opportunity of observing the witness.” This is correct. (Stilley, 66 Ill. 2d 515, 363 N.E.2d 820.) We noted that in its findings, the circuit court stated:

“Now, mother’s defense is that she did not know. I mean the evidence indicates to me that either she knew or reasonably should have known that this child was being sexually abused. Grandmother told her repeatedly. [S.D.] told grandmother.
I think he may have even also told mother, and yet, mother indicates that she had absolutely no knowledge that this two year old child is being sexually abused over the months by mother’s husband.
I find that absolutely incredible.”

The circuit court did find that a prima facie case of both abuse and neglect by a preponderance of the greater weight of the evidence had been established. Respondent was the only witness on her behalf and the trial court found her totally incredible. In an adjudicatory hearing to determine neglect, a court does not have to wait until a sibling becomes the victim of sexual or physical abuse before the court can find that the sibling is in an environment injurious to his welfare. (In re A.D.R. (1989), 186 Ill. App. 3d 386, 542 N.E.2d 487.) Based upon the evidence in the record and the circuit court’s finding that respondent was “absolutely incredible,” we find that the circuit court’s decision is contrary to the manifest weight of the evidence.

For the reasons stated herein, we reverse the circuit court of Cook County’s decision to dismiss S.D.’s petition and remand the cause for further proceedings.

Reversed and remanded.

MANNING, P.J., and CAMPBELL, J., concur.


text:
    SHEILA SANDERS, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—89—1745
    Opinion filed September 30, 1991.
    Caldwell & Black, of Chicago (James E. Caldwell, of counsel), for appellant.
    Querrey & Harrow, Ltd., of Chicago (Michael Resis, Victor J. Piekarski, and G.A. Finch, of counsel), for appellee Chicago Transit Authority.
    No brief filed for appellee Henry E. Hartford.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Sheila Sanders (plaintiff) brought an action against the Chicago Transit Authority (CTA) and its employee to recover damages for injuries she allegedly sustained from being hit by a CTA bus. Plaintiff appeals from an order of the trial court granting the CTA’s motion to dismiss (Ill. Rev. Stat. 1987, ch. 110, par. 2—619(a)(5)) on the ground that she failed to give proper notice to the proper party within the six-month period required by section 41 of the Metropolitan Transit Authority Act (Act) of her intent to sue the CTA. Ill. Rev. Stat. 1989, ch. 111⅔, par. 341.

On November 24, 1987, plaintiff was allegedly struck by a CTA bus at the intersection of Franklin Street and Randolph Street and sustained injuries. On January 25, 1988, plaintiff’s attorney sent a letter via certified mail to the CTA general counsel, enclosing his notice of attorney’s lien. The letter requested that the general counsel contact the attorney within two weeks of January 25, 1988, or he would file suit against the CTA.

Plaintiff’s attorney did not file suit within the two weeks, but did send medical records, medical bills and a report along with a signed authorization for the release of medical information to the claims department of the CTA in response to a letter received from a CTA claims adjuster. This material was submitted to the CTA within the six-month statutory notice period contained in section 41 of the Act.

Plaintiff’s attorney allegedly telephoned the CTA claims adjuster several times between April 1988 and September 1988, to inquire into the status of the settlement of plaintiff’s claim. Each time, plaintiff’s attorney was assured that the settlement was proceeding. In September 1988, the CTA claims adjuster informed plaintiff’s attorney that it would be preferable if a suit was filed against the CTA, rather than attempting to obtain redress through settlement.

On November 23, 1988, plaintiff filed a one-count complaint against the CTA and its employee. Summons issued only as to the CTA. No summons was issued for the CTA bus driver. The CTA filed an appearance and jury demand within three weeks of service. No appearance was filed on behalf of the CTA bus driver. In lieu of an answer, the CTA filed a motion to dismiss pursuant to section 2— 619(a)(5) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—619(a)(5)), relying upon the limitation provision of section 41 of the Act (Ill. Rev. Stat. 1989, ch. 111⅔, par. 341).

After the matter was fully briefed, the trial court issued a memorandum and order in which it granted the CTA’s motion to dismiss based on plaintiff’s failure to comply with the Act. The trial court found that plaintiff did not send notification to the secretary of the board of the CTA (Board) within six months after she sustained injuries allegedly caused by the CTA and its employee as required by section 41 of the Act. Thus, the trial court granted the CTA’s motion to dismiss.

The CTA contends that we do not have jurisdiction to hear this appeal because the trial court’s order does not contain the necessary language under Supreme Court Rule 304(a). (134 Ill. 2d R. 304(a).) This court has held in the past that the limitations for civil actions filed against the CTA (Ill. Rev. Stat. 1989, ch. 111⅔, par. 341) “apply to actions brought against CTA employees as well as the CTA.” (Medina v. Taylor (1989), 185 Ill. App. 3d 808, 812, 542 N.E.2d 33, 35.) Dismissal of the CTA operates as res judicata as to the defendant bus driver because this action against the CTA is founded on the theory of respondeat superior. (See Muscare v. Voltz (1982), 107 Ill. App. 3d 841, 843, 438 N.E.2d 620, 622.) The trial court’s dismissal, therefore, was in favor of all defendants at bar. No Rule 304(a) language is necessary under these circumstances to make the order final and appealable. (See City of Chicago v. American National Bank & Trust Co. (1988), 171 Ill. App. 3d 680, 525 N.E.2d 915.) We have jurisdiction to review the dismissal order entered in favor of the defendants.

First, plaintiff asserts that she complied with all the provisions of the Act except the provision in section 41, requiring a potential plaintiff to notify the secretary of the Board within six months from the date injuries were allegedly sustained of his intent to sue the CTA. (Ill. Rev. Stat. 1989, ch. 111⅔, par. 341.) Plaintiff contends that she substantially complied with the statute by giving notice to the general counsel and that, accordingly, the CTA was not prejudiced by the lack of notice to the secretary of the Board. Plaintiff argues that a strict construction of the Act would be inequitable. However, plaintiff incorrectly assumes that actual notice to one of the officials to whom the statute requires notice to be given is sufficient notice to the other officials so designated by the statute.

Recently, this court held that section 41 is mandatory, requiring a claimant to bear the burden of compliance in strict conformity with its stated terms. (Patinkin v. Regional Transportation Authority (1991), 214 Ill. App. 3d 973, 976.) Section 41 states in pertinent part:

“Within six (6) months from the date that such an injury was received or such cause of action accrued, any person who is about to commence any civil action in any court against the Authority *** shall file in the office of the secretary of the Board and also in the office of the General Attorney for the Authority ***.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 111⅔, par. 341.)

Failure to comply with the above provisions will result in dismissal of the action against the CTA. (Ill. Rev. Stat. 1989, ch. 111⅔, par. 341; see also Murphy v. Chicago Transit Authority (1989), 191 Ill. App. 3d 918, 548 N.E.2d 403.) We find that plaintiff did not comply with section 41 because she failed to notify a party, namely, the secretary of the Board, as required and, therefore, the trial court properly granted dismissal in favor of the CTA.

Second, relying upon Searcy v. Chicago Transit Authority (1986), 146 Ill. App. 3d 779, 497 N.E.2d 410, plaintiff contends that the CTA should be estopped from asserting a defect in notice because of representations made by one of its agents and upon whose conduct plaintiff allegedly relied to her detriment. In Searcy, the issue was the one-year limitation for filing suit against the CTA, not the six-month period in which a potential plaintiff must notify the secretary of the Board and the general attorney of her intent to sue the CTA as is the issue in the case at bar. In Searcy, the plaintiff was given and filled out a notice form and was assured by a claims adjuster that the CTA would reimburse her for medical bills and lost wages. Even after the plaintiff expressed concern to the CTA adjuster that the one-year limitation for filing a suit against the CTA would expire, the adjuster assured the plaintiff that she did not need to retain an attorney and that her case would be settled regardless of the duration of her injuries. The day after the one-year period had passed, the adjuster informed the plaintiff that her claim had been denied. The court held that the CTA was estopped from asserting that the limitation period had run because of the conduct of and representations made by the adjuster. Searcy, 146 Ill. App. 3d at 784, 497 N.E.2d at 413.

In the case at bar, plaintiff was represented by counsel and it is not alleged that any agent of the CTA informed plaintiff’s counsel that he need not comply with section 41 or that he need not send notice to the secretary of the Board. Therefore, the case at bar is distinguishable from Searcy. Additionally, some of the alleged conduct and representations of the CTA complained of by plaintiff, such as the CTA’s claims adjuster assuring plaintiff’s attorney that the settlement was proceeding, occurred after the six-month period had expired. It is well settled in Illinois that conduct after the expiration of the limitations period cannot be relied upon to create an estoppel. (Murphy, 191 Ill. App. 3d at 920-23, 548 N.E.2d at 404-06; Shortt v. City of Chicago (1987), 160 Ill. App. 3d 933, 936, 514 N.E.2d 3, 5; Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 307, 393 N.E.2d 1223, 1231.) Further, the CTA cannot be estopped from asserting noncompliance with section 41 just because it received plaintiff’s medical records and bills, a report containing information regarding the site of the accident, plaintiff’s name and a signed authorization for the release of medical information to the CTA’s claims department. (Murphy, 191 Ill. App. 3d at 921-22, 548 N.E.2d at 405.) Thus, plaintiff’s estoppel theory fails.

Since the statutory notice was defective and the suit was not filed within six months from the date of the injury, we hold that the trial court properly granted the CTA’s motion to dismiss. See Murphy, 191 Ill. App. 3d at 921-22, 548 N.E.2d at 405.

For the foregoing reasons, we affirm the circuit court of Cook County’s dismissal in favor of the CTA.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


text:
    LEILA PHARR, as Adm’r of the Estate of Bessie Levy, Deceased, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellee.
    First District (1st Division)
    No. 1—89—2370
    Opinion filed September 30, 1991.

      Ronald Kirk Goulding and Victor H. Goulding, both of Chicago, for appellant.
    Hoffman, Burke & Bozick, of Chicago (Edmund J. Burke and Gary W. Bozick, of counsel), for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Leila Pharr (plaintiff), administrator of the estate of Bessie Levy (decedent), appeals the jury verdict in favor of defendant Chicago Transit Authority (CTA). Plaintiff contends that defense counsel’s (1) comment on plaintiff’s failure to produce a witness was improper and (2) tactics and argument concerning the bus driver’s report were improper and prejudicial, and that the trial court erred in (1) permitting defense counsel to read into evidence portions of a deposition which included hearsay statements allegedly made to the deponent by a witness who was never called to testify, (2) allowing defense counsel to prejudice the all-white jury by suggesting the illegitimacy of decedent’s lineal heirs, (3) allowing the bus driver to give expert testimony regarding a door interlocking device, (4) failing to instruct the jury concerning a violation of an ordinance, and (5) failing to give the jury the full proximate cause instruction. Plaintiff also contends that plaintiff’s counsel was wrongfully precluded from arguing that the bus driver had been instructed not to testify before the coroner’s jury and then lied about that fact. Plaintiff further argues that the jury’s verdict was contrary to the law and the evidence and that defense counsel’s trial tactics inflamed the jury and produced a verdict based upon conjecture and prejudice.

This lawsuit arose as the result of an accident that occurred on January 22, 1976. Plaintiff filed this lawsuit against the CTA alleging that the CTA failed to exercise the highest degree of care for its passenger, decedent, as she was alighting from the bus and that the CTA’s negligence proximately caused decedent to fall while alighting from the bus, thereby causing severe injury to decedent which resulted in her death. The case was originally tried in 1983. A directed verdict was entered in the CTA’s favor. Plaintiff appealed the verdict, and the appellate court reversed and remanded for a new trial. It was retried before a jury in October 1988. The jury entered a verdict in favor of the CTA and judgment was entered thereon. Plaintiff again appeals.

Plaintiff’s first witness was Alphonso Henderson (Alphonso), who was with his grandmother, decedent, when the accident occurred and at that time was five years old. His videotaped evidence deposition was shown to the jury. He testified that he and decedent had been shopping and had boarded a CTA bus on their way home. When the bus came to a stop, Alphonso exited the rear door of the bus and decedent followed him. Both Alphonso and decedent were carrying shopping bags. Alphonso testified that as decedent attempted to exit the bus, she had one foot on the ground and one foot on the bus, and as she got ready to put her other foot down, the door of the bus closed on her, catching her coat inside the door. The bus drove away, dragging her, ripping her coat and spinning her to the ground. Decedent struck the pavement and lay there moaning with blood coming from her head. According to Alphonso, a man and a woman whom he did not know arrived at the scene of the accident to help decedent. The bus did not stop. Thereafter, an ambulance arrived and took decedent to a hospital. For several days after the accident, Alphonso refused to speak with police about the accident, claiming that it was “none of their business.”

Maxine Trice also testified on behalf of plaintiff. She testified that she had been visiting her aunt, Gloria Montgomery, and Arnold Bell. Montgomery’s house was across the street from the site of the accident. Trice crossed the street to go to Bell’s car, which was parked at the northwest corner of Marquette and Hamilton. According to Trice, Bell and Montgomery were still in front of the Montgomery house talking. When Trice began to cross from the south side of Marquette to the north side, she observed a CTA bus proceeding west on Marquette Road. As Trice got to the north side of Marquette, she walked west towards Hamilton. Trice saw the bus stop on Marquette, a little west of Hamilton. The location at which the bus stopped was not a designated bus stop. Trice claims she saw a little boy get off the bus, followed by a woman starting to get off the bus. She testified that as the woman had one foot on the ground and one foot still on the bus, the bus drove away, spinning the woman around until the woman fell to the ground, where her head struck the pavement and began bleeding. Trice went over to the boy and woman, where she was joined by Bell.

Trice admitted that the first time that she had ever told anyone her account of what happened on January 22, 1976, was to plaintiff’s counsel in May or June 1988. Thus, she waited over 12 years to tell this story. Trice testified that she had told Montgomery what she had witnessed immediately after the accident. In Trice’s deposition, which was taken one or two weeks before the trial, however, she stated that she never told Montgomery that she had witnessed the accident.

Chicago police officer James Carlo’s videotaped evidence deposition was also shown to the jury. Officer Carlo testified that on January 22, 1976, he was informed of an accident involving a CTA bus, occurring at 2134 West Marquette at approximately 1 p.m. Officer Carlo investigated the scene of the accident, noting blood in the street three feet seven inches from the north curb and finding the surface of the street dry. Officer Carlo contacted a CTA supervisor, who came to the scene and identified the bus and the driver that had allegedly been involved in the accident.

Chester Ciciura, the CTA bus driver who was allegedly involved in the accident, testified that he remembered a woman and a little boy boarded his bus on the day of the accident. Ciciura recalled that the woman rang the bell for the Hoyne stop, but not in time for him to stop there. Ciciura, therefore, stopped the bus on the next block in front of the viaduct west of Hamilton on Marquette because there was a dry, safe spot for the passengers to alight. Ciciura acknowledged that the curbs were slushy, but that the pavement was dry, which is why he stopped the bus about AVz feet from the curb. He stopped at this nondesignated location because the next stop after Hoyne was 2V2 blocks away and he felt sorry for the lady because she had a small boy with her, bags of groceries in her hands and it was very cold that day. According to Ciciura, the little boy departed from the bus followed by the lady. Ciciura stated that he used the right side rearview mirror to watch the boy and the lady get off the bus. He watched them as the doors closed and saw them start walking east. Ciciura testified that the bus never moved as decedent was alighting from the bus and that he never saw decedent fall. On his return trip, Ciciura was stopped by a police officer, who notified him of the accident. When Ciciura returned to the CTA garage, he made out a report.

Ciciura further testified that the rear doors of the bus were “push-type” doors which would remain open if a passenger leaned on the door bars. Additionally, he stated that the rear doors were equipped with an interlocking system which prevented the bus from moving while the rear doors were open.

Ciciura initially claimed that his testimony before the jury was the same as his testimony before the coroner’s jury at the inquest of decedent’s death. Later, Ciciura admitted that he had not told the coroner’s jury anything about how the accident happened. He also testified that CTA rules and municipal ordinances, in force at the time, required that bus drivers discharge passengers only at authorized stops. Ciciura admitted that he was not obeying those rules at the time of this alleged accident.

Plaintiff first argues that defense counsel’s comment during closing argument, regarding plaintiff’s failure to produce Bell, an alleged witness to the accident, at trial was improper. Defense counsel made the following comment: “The only name that was given to the investigating police officer in this case was Mr. Bell, who was never brought in here and whose absence was never explained.”

Plaintiff failed to make a contemporaneous objection to defense counsel’s comment regarding the absence of Bell at trial and first objected to the comment in the post-trial motion. A party cannot sit on his hands and let perceived errors into the record and complain of those errors for the first time in a post-trial motion. (Daniels v. Standard Oil Realty Corp. (1986), 145 Ill. App. 3d 363, 369, 495 N.E.2d 1019, 1024, citing Urman v. Walter (1981), 101 Ill. App. 3d 1085, 428 N.E.2d 27.) A failure to object to alleged errors in an opponent’s closing argument is considered a waiver of the objection. Kenny Construction Co. v. Hinsdale Sanitary District (1982), 111 Ill. App. 3d 690, 444 N.E.2d 510.

Plaintiff contends that defense counsel’s statement was so improper and prejudicial that it deprived plaintiff of a fair trial and, therefore, we may consider the alleged error even though no objection or ruling was made or preserved by plaintiff’s counsel. (See Manninger v. Chicago & Northwestern Transportation Co. (1978), 64 Ill. App. 3d 719, 381 N.E.2d 383.) In Manninger, plaintiff’s closing argument suggested that defendant had bribed people and had given witnesses a script to follow while testifying. The court found that statements made by plaintiff’s counsel accused defense counsel of subornation of perjury and suppression and distortion of evidence. (Manninger, 64 Ill. App. 3d 719, 381 N.E.2d 383.) In the case at bar, defense counsel merely commented upon the absence of a potential witness. This comment was not so improper or prejudicial as to deprive plaintiff of a fair trial; therefore, we find that plaintiff waived her objection to defense counsel’s comment during closing argument regarding plaintiff’s failure to produce Bell at trial.

Plaintiff secondly contends that defense counsel’s tactics and argument concerning the bus driver’s report were improper and prejudicial. During a side-bar conference, plaintiff objected to the anticipated attempt by defendant to offer into evidence the bus driver’s report on the basis that it was self-serving and inadmissible. During direct examination of Ciciura, defense counsel was permitted to bring out the fact that Ciciura had made out an accident report on the day of the incident and that the report was used to refresh Ciciura’s recollection. During cross-examination, plaintiff’s counsel attempted to impeach Ciciura concerning his lack of testimony in front of the coroner’s jury. On redirect examination, defense counsel attempted to rehabilitate Ciciura as a witness by offering his report into evidence, which would corroborate his testimony at trial. The trial court sustained plaintiff’s counsel’s objection.

Ciciura was allowed to testify that the report contained the same information that he had conveyed to the jury. Thus, plaintiff’s argument that defense counsel attempted to “create the appearance that plaintiff’s counsel was trying to keep something from the jury” is without merit, because Ciciura stated that he had told the jury everything. Further, it was defense counsel who elicited the testimony from Ciciura that the information contained in the report was basically what he had told the jury, thus wiping away any implication that plaintiff was trying to “keep something” from them. Defense counsel’s tactics were not so prejudicial that plaintiff was denied a fair trial.

Plaintiff also contends that defense counsel’s comment regarding Ciciura’s report during closing argument was grossly improper. In closing argument, defense counsel stated that Ciciura had testified that everything he ever told the jury was in his CTA report. Again, plaintiff failed to make a contemporaneous objection to this comment during defense counsel’s closing argument. Plaintiff, therefore, has waived review of the comment and alleged error. Kenny, 111 Ill. App. 3d 690, 444 N.E.2d 510.

Plaintiff argues further that the trial court erred in permitting defense counsel to read into evidence portions of Officer Carlo’s evidence deposition which included hearsay statements allegedly made to the deponent by a witness who was never called to testify. Portions of Carlo’s evidence deposition were offered into evidence during plaintiff’s case. During defendant’s case, however, defense counsel read certain additional portions of Carlo’s deposition into evidence. Plaintiff’s counsel objected to defense counsel reading into evidence portions of that transcript which included hearsay statements. Plaintiff specifically objected to statements allegedly made by Montgomery to Carlo regarding Bell as a witness. The record indicates that the fact that Carlo obtained Bell’s name from Montgomery was already in evidence. The trial court, thus, permitted this hearsay into evidence. Admission of hearsay evidence is not prejudicial where the evidence is merely cumulative. (Clifford v. Schaefer (1969), 105 Ill. App. 2d 233, 245 N.E.2d 49.) The trial court properly allowed the hearsay statements into evidence and plaintiff was not prejudiced by their admission.

Plaintiff also contends that defense counsel improperly commented on the hearsay statements during closing argument. Again, plaintiff failed to object to these alleged improper comments at trial and, thus, has waived any error concerning them for purposes of appeal. Kenny, 111 Ill. App. 3d 690, 444 N.E.2d 510.

Plaintiff argues that the trial court erred in allowing defense counsel to prejudice the all-white jury by suggesting the illegitimacy of decedent’s lineal heirs. Plaintiff contends that the trial court granted its motion in limine which barred defendant from using any “testimony, remarks, question, answer, inference, innuendo or argument” which might convey to the jury that decedent or any of her lineal next-of-kin were illegitimate. The trial court allowed the jury to hear the following excerpt from Vanessa Henderson’s (one of decedent’s grandchildren) evidence deposition:

“Q. By Mr. Burke: Reggie was from the same father as you?
A. I don’t know too much about the fathers.
Q. Well was Reggie’s father the same as your father?
A. I don’t know too much about that.
Q. You don’t know that.
A. I don’t know that.
Q. Okay. And Alphonso, he is your half brother also?
A. No, Alphonso is not.
Q. So-
A. I don’t know too much about the fathers.
Q. Does he have the same father as you have?
A. I don’t know that.
Q. And Teresa is your half sister?
A. Yes, she is.
Q. So obviously she had a different father, right?
A. Yes, she does.”

The motion and order in limine are not contained in the record on appeal. This court cannot take cognizance of contentions based on matters outside the record. In re Annexation of Certain Territory to the City of Darien (1973), 16 Ill. App. 3d 140, 145, 304 N.E.2d 769, 773.

The record also fails to establish that plaintiff objected during the allegedly improper questioning of Vanessa Henderson. There is no ground for error when no objection is made; thus, plaintiff has waived the assignment of error. (E & E Hauling, Inc. v. Pollution Control Board (1985), 107 Ill. 2d 33, 38, 481 N.E.2d 664, 666.) Moreover, the complained-of questioning took place during a videotaped evidence deposition which was taken approximately one month before trial with plaintiff’s counsel present. Therefore, if plaintiff found the questioning objectionable, and if it was encompassed within the purported order in limine, plaintiff had ample opportunity to bring it to the trial court’s attention and request that it be edited out. Plaintiff’s objection to this line of questioning was waived. See E & E Hauling, 107 Ill. 2d at 38, 481 N.E.2d at 666.

Next, plaintiff argues that the trial court erred in allowing the bus driver to give expert testimony regarding a door interlocking system. At trial, Ciciura, the CTA bus driver, testified that the bus was equipped with an interlocking system which prevents the bus from moving while the rear doors are open. Plaintiff characterizes this testimony as expert testimony. Supreme Court Rule 220(a) defines an expert witness as “a person who *** possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation and who may be expected to render an opinion at trial.” (107 Ill. 2d R. 220(a).) Ciciura did not render an opinion at trial concerning the interlocking system. Instead, Ciciura merely stated that the bus was equipped with a certain feature, which is similar to what any lay person would testify to concerning features with which his or her vehicle is equipped. Furthermore, the appellate court in the past has allowed a bus driver to testify that the bus he was driving was equipped with an interlocking system which prevented the bus from moving while the rear doors were open. (Acosta v. Chicago Transit Authority (1976), 39 Ill. App. 3d 80, 349 N.E.2d 613.) Ciciura’s testimony concerning the interlocking system was not expert testimony and was properly admitted.

Additionally, plaintiff contends that no foundation testimony was presented to establish with reasonable certainty that the interlocking system was operational or in proper working order at the time of the occurrence. Plaintiff, however, was able to elicit on cross-examination whether the bus was examined after the accident to check whether the interlocking system was working properly. Thus, the jury heard testimony that the particular bus’ system was not checked after the accident, thus remedying any concern for foundation testimony. Moreover, plaintiff’s counsel failed to object on the basis of foundation; therefore, plaintiff has waived any such objection for the purposes of appeal. See Akers v. Atchison, Topeka & Santa Fe Ry. Co. (1989), 187 Ill. App. 3d 950, 543 N.E.2d 939.

Plaintiff argues that the trial court erred in failing to instruct the jury concerning a violation of an ordinance and in failing to give the jury the full proximate cause instruction. The trial court has discretion in giving instructions and the refusal to give an instruction must create undue prejudice before a new trial is required. Ferry v. Checker Taxi Co. (1987), 165 Ill. App. 3d 744, 520 N.E.2d 733.

Plaintiff’s instruction number 14 concerns discharging passengers at an unauthorized bus stop in violation of a municipal ordinance. Defendant admits that he stopped the bus at an unauthorized location. Plaintiff cites this court’s previous decision in this case that a “violation of the statute or ordinance designed for protection of the public is prima facie evidence of negligence, and the plaintiff may recover if he shows the violation is the proximate cause of the injury. Proximate cause is a factual issue to be decided by the jury ***.” (Emphasis added.) (Pharr v. Chicago Transit Authority (1984), 123 Ill. App. 3d 205, 209, 462 N.E.2d 753, 756.) This quote is legally correct. Plaintiff, however, fails to recognize that its own witnesses claim that the bus’ rear doors closed on decedent’s coat and that the bus moved before decedent was able to completely exit from the bus, thus causing her to fall and sustain her fatal injury. No evidence was introduced from which the jury could reasonably infer that decedent slipped and fell due to weather conditions or that stopping the bus at the unauthorized location had anything to do with decedent’s death. In fact, testimony at trial from Officer Carlo and Cieiura indicated that Cieiura stopped at a dry place which provided a safe haven for decedent and her grandson to exit the bus. Instructions are to be given only when there is evidence which supports the theory of the instruction; if there are no facts in the record which support the theory, giving an instruction on the theory is reversible error. (Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 419 N.E.2d 578.) Since there was no evidence from which a reasonable jury could infer that stopping at the unauthorized site proximately caused decedent’s injury and subsequent death, the trial court properly refused to give plaintiff’s instruction number 14 to the jury.

The trial court refused to give to the jury plaintiff’s instruction number 9, which was the long version of the proximate cause instruction. (Illinois Pattern Jury Instruction, Civil, No. 15.01 (2d ed. 1971) (hereinafter IPI Civil 2d).) According to the comments accompanying IPI Civil 2d No. 15.01, the instruction should be given in its entirety when there is evidence of a concurring or contributing cause other than the negligence of the defendants. The first sentence of the instruction is to be used only when the conduct of the plaintiff and defendant is in issue. Plaintiff misinterprets the IPI comments. Plaintiff has failed to indicate what the other contributing factor(s) might have been. We agree with defendant that, even assuming there was negligence, the form of negligence, whether it was discharging passengers at an unauthorized stop which contained unsafe conditions or by pulling away before decedent was fully off the bus or both, would not affect the manner in which the instruction was given because both these theories concern the bus driver’s negligence and do not concern other contributing causes. Further, plaintiff’s argument that weather conditions constitute a contributing cause is without merit, because we have found that there was no evidence to support the theory that decedent fell due to weather conditions. The trial court properly refused plaintiff’s instruction number 9 and gave the jury the short form of the proximate cause instruction, which was submitted by defendant.

Plaintiff contends that the trial court erred in precluding plaintiff’s argument concerning the alleged reasonable inferences to be drawn from the fact that the bus driver had been instructed not to testify before the coroner’s jury and then allegedly lied about that fact. This argument is totally without merit, because, in fact, plaintiff’s counsel argued the alleged reasonable inference that the bus driver had been instructed not to testify before the coroner’s jury and then allegedly lied about it. Plaintiff’s counsel during rebuttal argument commented:

“Now, if you believe that, then I’m the Tooth Fairy. This is from the same man who sat there on the witness stand under oath and told you, ‘Sure I told the coroner’s jury the same thing that I told this jury.’ You remember that? He had the whole lunch hour to think about it. And sure, that is what I told the coroner’s jury. How long did it take him before he finally admitted that he never told the coroner’s jury — he never told them anything, because the CTA lawyer advised him not to.”

Clearly, plaintiff was allowed to argue the inference to the jury that it now claims the trial court would not allow. Therefore, we find that this issue is without merit.

Lastly, plaintiff contends that defense counsel’s trial tactics inflamed the jury and produced a verdict based upon conjecture and prejudice and that the jury’s verdict was contrary to the law and the evidence. A jury verdict will not be overturned unless it is against the manifest weight of the evidence. (Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 412, 476 N.E.2d 1232, 1236.) A verdict is considered to be against the manifest weight of the evidence only when the opposite conclusion is clearly apparent or when the finding of the jury appears arbitrary or unsubstantiated by the evidence. (United States Department of Housing & Urban Development v. Anderson (1988), 178 Ill. App. 3d 752, 754, 533 N.E.2d 919, 920.) A reviewing court should not disturb the jury’s verdict unless, considering all of the evidence in the light most favorable to the party that prevailed at trial, the jury’s conclusion is palpably erroneous and wholly unwarranted. Anderson, 178 Ill. App. 3d at 754, 533 N.E.2d at 920-21.

CTA bus driver Ciciura testified that he stopped the bus near the viaduct on Marquette even though it was not an authorized stop. Ciciura stated that the place he stopped had a dry, safe place to which passengers could alight. Ciciura watched decedent and Alphonso in his rearview mirror as they exited the bus through the rear doors. Ciciura testified that the bus did not move while the passengers were exiting and that the rear doors closed. Additionally, Ciciura testified that the rear doors of the bus were equipped with an interlocking system which prevented the bus from moving while the doors were still open. Ciciura claims to have watched the rear doors close and seen decedent and Alphonso walking east.

Alphonso, who was five years old at the time of decedent’s accident, testified that, as decedent was alighting from the bus, the rear doors closed on her coat, she was dragged and spun to the ground. Trice, who admitted that the first time that she ever told anyone about her witnessing the accident was 12 years after it had happened, testified that decedent was in the process of alighting from the bus when the bus pulled away. Decedent then spun around and fell to the ground.

It is within the jury’s province to resolve conflicts in the evidence, and as long as the jury’s resolution is supported by credible evidence, then a reviewing court should not substitute its judgment for that of the jury. (Seward v. Griffin (1983), 116 Ill. App. 3d 749, 760, 452 N.E.2d 558, 567.) Further, it is the function of the trier of fact to determine the credibility of the witnesses and the inferences to be drawn from their testimony. (Harris v. Day (1983), 115 Ill. App. 3d 762, 769, 451 N.E.2d 262.) The jury was entitled to believe Ciciura’s account of what transpired the day of the accident. We find that the jury’s verdict is not against the manifest weight of the evidence and is not contrary to the law.

Additionally, as discussed throughout our opinion, defense counsel’s comments and tactics were either not improper or not prejudicial. Thus, we find that defense counsel’s tactics did not inflame the jury so as to produce a verdict based upon conjecture and prejudice.

For the foregoing reasons, the judgment of the circuit court of Cook County will be affirmed.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


text:
    SUSAN M. CONNOR et al., Plaintiffs-Appellants, v. MERRILL LYNCH REALTY, INC., et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—90—2153
    Opinion filed September 30, 1991.

      Susan Connor, of Chicago, for appellants.
    Ruud & Larson, of Arlington Heights (Donald W. Larson and Laura M. Bombera, of counsel), for appellees Merrill Lynch Realty, Inc., Frank Mc-Cabe, and Cathy McCabe.
    LeRoy W. Gudgeon, of Northfield, for appellee Marilyn Quinlan.
    Jacobson, Brandvik & Anderson, of Chicago (Craig E. Anderson and Charles J. Corrigan, of counsel), for appellee Beckett Home Maintenance Corporation.
   JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises from an action brought by Susan M. Connor and Tom Ticknor (plaintiffs), the buyers of a single-family home located at 3909 Emerson in Evanston (Home), against Merrill Lynch Realty, Inc., Frank McCabe and Cathy McCabe (Brokers), the real estate brokers, Marilyn Quinlan (Seller), the seller and Beckett Home Maintenance Corporation (Home Inspector), the home inspector to recover damages caused by persistent and massive flooding of the Home’s basement. The trial court granted summary judgment in favor of all the defendants on all counts pursuant to section 2—1005 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2—1005). Plaintiffs appeal that ruling.

In early 1985, plaintiffs enlisted the aid of Brokers in order to purchase a single-family home. During the course of Brokers showing homes to plaintiffs, plaintiffs indicated that they were only interested in homes with basements which were free from any flooding problem because they wanted to use the basement as a children’s playroom. Eventually, Brokers showed plaintiffs the Home. Plaintiffs inquired whether the Home exhibited any signs of flooding. Brokers had assured plaintiffs that they could assist plaintiffs in determining whether a home had a problem with water or flooding in the basement. Plaintiffs claim that Brokers stated that there was no evidence of prior flooding or flood damage in the Home. However, Seller informed plaintiffs that in the laundry room of the basement a “small trickle” of water sometimes occurred during heavy rain due to a hairline crack in the concrete foundation. Seller went on to explain that in 1980, the Home did experience significant flooding as a result of the Metropolitan Sanitary District mistakenly installing the wrong size pipe during the Deep Tunnel project (Deep Tunnel flooding). Seller represented that the situation had been corrected and that the basement had never flooded again in the 20 years Seller lived in the Home.

Plaintiffs decided to purchase the Home. An inspection rider was part of the contract. This rider permitted plaintiffs to have the Home inspected within three days of the Seller’s acceptance of the contract and to give written disapproval of the contract within those three days if plaintiffs did not approve the condition of the Home. Plaintiffs hired Beckett Home Maintenance Corporation, Home Inspector, to inspect the Home for possible defects. Donald Beckett, an employee of Home Inspector, inspected the Home in April 1985. Home Inspector offered plaintiffs two types of home inspections from which to choose. Plaintiffs could have chosen to have a written inspection, but instead opted for the less expensive inspection in which the Home Inspector walks the clients through the house and orally advises them of observed defects in the home. Home Inspector conducted an inspection of the Home in the presence of plaintiffs.

Home Inspector along with plaintiffs inspected the basement. Plaintiffs assert that they pointed out a stain on the baseboard to Home Inspector and that he stated the stain was caused by the window directly above it leaking and that caulking the window would completely remedy the problem. Plaintiffs further claim that Home Inspector stated that the hairline crack in the laundry room would not be a problem. According to plaintiffs, Home Inspector did not point out any other water marks to them and that he said the basement showed no evidence of water problems or propensity to flood.

On the other hand, Home Inspector asserts that he checked the wall studs in the unfinished portion of the basement and found them to be free of any marks. Additionally, Home Inspector claims that he pointed out a flooded area along the wall of the laundry room. He stated, “This has had water marks. This has had water in the basement.” Home Inspector did not attempt to explain the water marks away because he did not know what had caused them. Instead, the Seller again explained that a trickle of water came through the hairline crack during heavy rains.

Plaintiffs assert that in reliance on the statements made by all defendants, they purchased the Home. In August 1985, and thereafter, the Home repeatedly flooded with substantial quantities of sewage and water. After the initial flood, plaintiffs removed a large carpet which had been left behind on the basement floor by Seller. Plaintiffs then discovered a large number of floor tiles were damaged or missing from the floor and that the position of the carpet had obscured and prevented the discovery of the condition of the tiles. Furthermore, after Seller removed her furniture from the basement, plaintiffs discovered numerous dark marks and stains on the paneling throughout the basement. Plaintiffs also discovered that the surrounding neighborhood is subject to continual periodic flooding and that the Brokers had personal knowledge concerning the flooding propensities of the immediate area.

On March 16, 1987, plaintiffs filed a complaint against defendants alleging common law fraud by affirmative misrepresentation, common law fraud by misrepresentation made in culpable ignorance of the truth, negligent misrepresentation, violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1987, ch. 121½, par. 261 et seq.) and violation of the Real Estate License Act of 1983 (Real Estate Act) (Ill. Rev. Stat. 1985, ch. 111, par. 5801 et seq.) as to Brokers; negligent misrepresentation and breach of contract as to Home Inspector; and fraud by silence and omission and common law fraud by concealment as to Seller.

Each defendant filed a motion for summary judgment, and plaintiffs responded with a memorandum in opposition to each of the defendants’ motions. Summary judgment was granted in favor of all the defendants on all counts of the complaint.

A defendant may at any time move with or without supporting affidavits for a summary judgment in his or her favor for all or any part of the relief sought. (Ill. Rev. Stat. 1983, ch. 110, par. 2—1005.) Summary judgment will be granted only if the pleadings, affidavits and depositions on file reveal that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Kroll v. Sugar Supply Corp. (1983), 116 Ill. App. 3d 969, 452 N.E.2d 649.) Plaintiffs are not required to prove their case at summary judgment stage; however, they are under a duty to present a factual basis which would arguably entitle them to judgment in their favor. (Martin v. 1727 Corp. (1983), 120 Ill. App. 3d 733, 458 N.E.2d 990.) Facts which are unrelated to the essential elements of a plaintiff’s cause of action are immaterial, and no matter how sharply controverted, their presence in the record will not warrant denial of a motion for summary judgment. (Equity General Insurance Co. v. Patis (1983), 119 Ill. App. 3d 232, 456 N.E.2d 348.) In determining whether a moving party is entitled to summary judgment, the trial court must construe evidence strictly against the movant and liberally in favor of the opponent. Dietz v. Spalla (1989), 186 Ill. App. 3d 742, 542 N.E.2d 855.

Plaintiffs allege that they have a common law action for fraud by affirmative misrepresentation against Brokers. In order to prevail on the above action, plaintiffs must allege and prove the following elements: (1) a false statement of material fact; (2) that the statement was intentionally made; (3) that the party to whom the statement was made had a right to rely on it and did so; (4) that the statement was made for the purpose of inducing the other party to act; and (5) that the party reasonably relied on the statement to its detriment. Redarowicz v. Ohlendorf(1982), 92 Ill. 2d 171, 441 N.E.2d 324.

Plaintiffs assert that Brokers assured them that they could assist plaintiffs in determining whether a home they were viewing had a problem with water or flooding in the basement. Plaintiffs allege in their complaint that they questioned Brokers regarding the Home’s water damage and its propensity to flood. Plaintiffs claim that Brokers responded by representing that although there were water marks on the baseboard, there was no problem with flooding or damage caused by flooding and that there was no prior evidence of flooding. Plaintiffs further assert that Brokers lived in the area of the Home and knew the area was predisposed to flooding. Plaintiffs claim to have relied on these representations and purchased the Home, which has repeatedly flooded since they have resided there.

There is no evidence that Brokers had any knowledge that the basement of the Home had flooded more than the one-time Deep Tunnel flooding explained by Seller. Brokers identified the water marks in the basement to plaintiffs. After Seller’s explanation of the Deep Tunnel flooding, Brokers stated that they could not see any damage other than that already apparent to plaintiffs. Furthermore, Brokers recommended to plaintiffs that they hire Home Inspector to inspect the basement, pursuant to the inspection rider, regarding the flooding. During the inspection of the basement, plaintiffs were told that there was water damage and, again, about the Deep Tunnel flooding.

Brokers did not fail to properly investigate the circumstances surrounding the flooding problem of the Home. Even though Brokers were told that plaintiffs wanted a home with a basement that did not flood and told plaintiffs that they could assist in determining whether a home had problems with flooding or water in the basement, plaintiffs were aware of a prior flooding and water marks and retained an inspector that further put them on notice that the basement of Home showed signs of previous flooding problems. Moreover, there is no evidence that Brokers had any material information which was concealed from plaintiffs.

Additionally, plaintiffs did not reasonably rely on any of Brokers’ statements concerning the Home’s flooding problems. In Smith v. Ethell (1986), 144 Ill. App. 3d 171, 494 N.E.2d 864, the following standard for investigating the status of real estate was set forth:

“[WJhen an individual of ordinary prudence is on notice of a possible problem and that further investigation may be required:
‘It is only where, under the circumstances, the facts should be apparent to one of his knowledge and intelligence from a cursory glance, or he has discovered something which should serve as a warning that he is being deceived, that he is required to make an investigation of his own.’ ” (Emphasis added.) (144 Ill. App. 3d at 175, quoting W. Prosser, Torts §108, at 718 (4th ed. 1971).)

The trial court properly found that plaintiffs were on notice of a potential defect. “A person may not enter into a transaction with his eyes closed to available information and then charge that he has been deceived by another.” (Central States Joint Board v. Continental Assurance Co. (1983), 117 Ill. App. 3d 600, 606, 453 N.E.2d 932, 936.) In determining whether reliance was reasonable, all of the facts which plaintiff had actual knowledge of, as well as all of those it might have learned if it had used ordinary prudence, must be taken into account. (National Republic Bank v. National Homes Construction Corp. (1978), 63 Ill. App. 3d 920, 925, 381 N.E.2d 15, 19.) If ample opportunity existed to discover the truth, then reliance is not justified. Central States Joint Board, 117 Ill. App. 3d at 607, 453 N.E.2d at 937.

Plaintiffs had actual knowledge of the Home having previously flooded with a significant amount of water. Plaintiffs argue that Brokers lived in the same area of the Home and knew the area’s propensity to flood. Likewise, plaintiffs also lived in the area prior to purchasing the Home and must have learned by the “use of ordinary prudence” of the area’s flooding problems. Nevertheless, the question is not whether the area had flooding problems, but whether the Home had flooding problems. There is no factual basis that Brokers made any false statements of material fact. Nothing in the record suggests that Brokers knew the Home had flooding problems, other than the representations made by Seller in the presence of plaintiffs. Additionally, plaintiffs’ reliance on any of Brokers’ statements regarding the Home’s flooding problems was not reasonable in light of the actual knowledge plaintiffs had including the apparent water marks, the Seller’s explanation of the Deep Tunnel flooding and Home Inspector’s comments that the basement showed signs of previous flooding. Summary judgment in favor of Brokers as to count I of the complaint was properly granted.

Plaintiffs additionally allege fraudulent misrepresentation and negligent misrepresentation against Brokers. For the reasons stated above, summary judgment in favor of Brokers on these counts were also properly granted.

Plaintiffs claim that Brokers violated the Consumer Fraud Act. Section 2 of the Consumer Fraud Act protects consumers against fraud, unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. (Ill. Rev. Stat. 1983, ch. 121½, par. 261 et seq.) Under the Consumer Fraud Act, a deceptive practice is the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact. (Ill. Rev. Stat. 1983, ch. 121½, par. 262.) The Consumer Fraud Act is intended to provide broader consumer protection than the common law action of fraud. (Kellerman v. Mar-Rue Realty & Builders, Inc. (1985), 132 Ill. App. 3d 300, 306, 476 N.E .2d 1259, 1263.) A plaintiff, thus, does not have to show actual reliance or diligence in ascertaining the accuracy of the misstatements. (Munjal v. Baird & Warner, Inc. (1985), 138 Ill. App. 3d 172, 182, 485 N.E.2d 855, 864; Beard v. Gress (1980), 90 Ill. App. 3d 622, 627-28, 413 N.E .2d 448, 452.) The Consumer Fraud Act applies to the communication of any false, misleading or deceptive information by real estate brokers to prospective purchasers if the broker knows of the false, misleading or deceptive character of such information. (Ill. Rev. Stat. 1983, ch. 121½, par. 270b(4); Seligman v. First National Investments, Inc. (1989), 184 Ill. App. 3d 1053, 1063, 540 N.E.2d 1057, 1063; Beard, 90 Ill. App. 3d at 627-28, 413 N.E.2d at 451.) The Consumer Fraud Act, therefore, was not intended to impose liability upon a broker for latent or hidden defects (Harkala v. Wild-wood Realty, Inc. (1990), 200 Ill. App. 3d 447, 453), and should not be used to turn nondeceptive or nonfraudulent statements or omissions into actionable affirmations. Kellerman, 132 Ill. App. 3d at 306, 476 N.E.2d at 1263.

Plaintiffs allege that Brokers made misrepresentations by stating that there were water marks on the baseboard in the rear portion of the basement but that no problems with flooding or damage caused by flooding had occurred and that there was no evidence of prior flooding. As in Munjal, we refuse to find Brokers liable for latent or hidden defects of which they had no prior knowledge. (See Munjal, 138 Ill. App. 3d at 183, 485 N.E.2d at 864.) Plaintiffs were aware of the water damage as pointed out by both the Brokers and Home Inspector and explained by the Seller. Therefore, any alleged misrepresentations as to the water problem made by Brokers were cured when plaintiffs were informed of the water damage and the Deep Tunnel flooding. (See Munjal, 138 Ill. App. 3d at 183, 485 N.E.2d at 864.) Brokers did not make any representations as to the extent of the possible flooding problem in the Home. The extent of the flooding problem was either a latent or a hidden defect for which Brokers are not liable. (Harkala, 200 Ill. App. 3d at 453.) The record is clear that Brokers assisted plaintiffs in obtaining a home inspector to further inquire about the possible flooding problem. Moreover, there is no factual basis upon which plaintiffs can prove that Brokers knew of the falsity or misleading or deceptive nature of any representations they allegedly made to plaintiffs.

Brokers’ actions were reasonable in light of the circumstances. There is no question of material fact concerning the allegations of a violation of the Consumer Fraud Act by Brokers; therefore, summary judgment on the consumer fraud count was proper.

Plaintiffs failed to properly plead any specific violations made by Brokers under the Real Estate Act. As stated above, plaintiffs were informed of the water damage and previous flooding of the Home. Plaintiffs did not reasonably rely on any misrepresentations made by the Brokers. As a matter of law, Brokers are entitled to summary judgment on count V because no question of material fact exists as to a violation of the Real Estate Act.

Plaintiffs assert a cause of action for negligent misrepresentation against Home Inspector by alleging that he had a duty to reasonably inspect the Home and that he breached that duty. An action for negligent misrepresentation is maintainable if plaintiffs allege a duty owed by Home Inspector to them, a breach of that duty and injury proximately caused by the breach. See McAfee v. Rockford Coca-Cola Bottling Co. (1976), 40 Ill. App. 3d 521, 352 N.E.2d 50; Lindquist v. Highland Park Hospital Foundation (1976), 40 Ill. App. 3d 722, 353 N.E.2d 156.

This case is analogous to Chicago Export Packing Co. v. Teledyne Industries, Inc. (1990), 207 Ill. App. 3d 659, 566 N.E.2d 326, in which the court affirmed the grant of summary judgment in favor of defendants by finding that plaintiff had actual notice that rail service would not be available, and that, consequently, plaintiff could not rely on defendants’ representations that it would be available. (Chicago Export Packing, 207 Ill. App. 3d at 665, 566 N.E.2d at 330.) Similarly, plaintiffs had actual notice that the Home had once taken a significant amount of water in the basement. Plaintiffs, therefore, cannot rely on Home Inspector’s representations when they had actual notice that the Home flooded previously. Moreover, Home Inspector did not attempt to explain the basement’s evidence of flooding, but instead, allowed the Seller to explain the water marks. Summary judgment, thus, was properly granted to Home Inspector as to count VI of the complaint.

Plaintiffs allege that Home Inspector breached the contract by failing to inform them of the Home’s propensity for severe flooding. Plaintiffs admit that Home Inspector did point out that the basement did have water marks. Home Inspector had no way of knowing if the water marks were from the Deep Tunnel flooding previously explained to plaintiffs or from persistent flooding. Home Inspector was hired to inspect the Home for defects. Home Inspector did this; he pointed out that the Home had taken in water on at least one previous occasion. Plaintiffs were on notice of the potential defect, namely, that the basement had flooded and there was physical evidence to substantiate it. There is no allegation that the condition of the Home shows evidence that there is a “propensity” for the basement to flood or numerous previous floodings. Home Inspector did not attempt to explain the reasons for the obvious water damage. Instead, Seller, who presumably had knowledge of the incidents) of flooding, explained the water marks. Plaintiffs chose to believe Seller. Home Inspector fulfilled its obligations under the contract and no material issue of fact exists as to whether Home Inspector breached the contract; therefore, summary judgment was proper.

Plaintiffs allege fraud by silence and omission against Seller in their complaint. Plaintiffs contend that Seller represented that the Home did not flood during the more than 20 years in which she lived there, with the exception of the Deep Tunnel flooding. However, plaintiffs assert that since they have resided in the Home, it had repeatedly and substantially flooded with sewage and water. While silence in a business transaction does not necessarily amount to fraud, silence accompanied by deceptive conduct or suppression of material facts results in active concealment. (Russow v. Bobola (1972), 2 Ill. App. 3d 837, 841, 277 N.E.2d 769, 771.) “[I]f a party to a contract of sale does not disclose the whole truth, having the requisite intent to deceive, this amounts to fraud equally with an affirmative falsehood.” (Emphasis added.) (Munjal, 138 Ill. App. 3d at 180, 485 N.E.2d at 862, citing Russow, 2 Ill. App. 3d at 841, 277 N.E.2d at 771.) Plaintiffs claim that Seller failed to disclose the whole truth, mainly, that the Home flooded repeatedly and not just on the one occasion of the Deep Tunnel flooding.

The right of a moving party to summary judgment must be clear, free from doubt and determinable solely as a question of law. If there is any fact or facts present on which reasonable people may disagree or inferences which may be fairly drawn from those facts and may lead to different conclusions, then resolutions of those facts and inferences must be made at trial. (Nolan v. Johns-Mansville Asbestos & Magnesia Materials Co. (1979), 74 Ill. App. 3d 778, 392 N.E.2d 1352.) A fact can be established from circumstantial evidence where the circumstances or events are so related to each other, as to make the conclusion the only probable one which can be drawn. (See Johnson v. Burlington Northern, Inc. (1982), 107 Ill. App. 3d 130, 437 N.E.2d 334.) On the basis of the allegation that since Buyer moved into the Home there has been persistent and significant flooding, the only probable conclusion which can be drawn is that the persistent flooding of the Home did not begin after 20 flood-free years with the exception of the admitted Deep Tunnel flooding. It can be inferred that Seller had knowledge that the Home was predisposed to flooding and that the evidence of a flooding problem was an accumulation of damage from several previous floodings. A seller’s failure to disclose the full extent of the problem may be an attempt to deceive plaintiffs in order to induce them into purchasing the property. (See Munjal, 138 Ill. App. 3d at 180, 485 N.E.2d at 862.) A reasonable possibility that the theory consistent with plaintiff’s pleading is true precludes summary judgment because only where there is no doubt as to facts and the law applicable thereto should a motion for summary judgment be granted. (Dakovitz v. Arrow Road Construction Co. (1975), 26 Ill. App. 3d 56, 324 N.E.2d 444.) A genuine issue of material fact exists as to whether Seller knowingly made a false statement regarding the history of the flooding of the basement to plaintiffs. We find that plaintiffs have presented a factual basis which would arguably entitle them to judgment in their favor. (See Martin, 120 Ill. App. 3d 733, 458 N.E.2d 990.) We reverse the trial court’s grant of summary judgment in favor of Seller as to count VIII and remand this matter for continued proceedings.

Plaintiffs allege that Seller actively concealed evidence of flooding in order to induce them to purchase the Home. There is no evidence that Seller replaced damaged tile or paneling or even attempted to paint over water marks evident in the basement. Plaintiffs argue that Seller concealed the water damage by placing carpeting and furniture over the water-damaged areas. There is no evidence, however, that Seller prevented plaintiffs from moving the furniture in order to inspect the area it covered. More importantly, Seller admitted to having a significant amount of water in the basement at one time. Thus, after Seller’s admission there would be no reason to conceal the damage which may have been done. No issue of material fact exists with regard to count IX of the complaint, and the trial court properly granted summary judgment in favor of Seller.

For the reasons stated herein, we affirm the circuit court of Cook County’s grant of summary judgment in favor of defendants as to counts I through VII and count IX, but reverse the summary judgment granted in favor of Seller as to count VIII and remand it for further proceedings.

Affirmed in part; reversed in part and remanded.

CAMPBELL and O’CONNOR, JJ., concur.


text:
    ROCHELLE E. BALABAN, Plaintiff-Appellant, v. HARRIET GOTTFRIED, Defendant-Appellee.
    First District (1st Division)
    No. 1—91—0794
    Opinion filed September 30, 1991.
    Goldberg, Wiesman & Cario, Ltd., of Chicago (Joseph P. Sorce, of counsel), for appellant.
    Law Office of Clifford P. Mallon, of Chicago (John H. Mullen, of counsel), for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

This appeal is taken from entry of an order granting defendant’s motion to quash plaintiff’s rejection of an arbitration award which was entered in plaintiff’s absence.

Plaintiff filed a personal injury action seeking recovery for damages sustained in an automobile accident. When the case was assigned to the mandatory arbitration calendar, plaintiff’s counsel, Susan Gerovasil, notified defense counsel that neither plaintiff nor any attorney from her office would be present at the hearing and that she would “accept a zero award and proceed with the matter on the Court’s Jury Trial Call.” An award was entered in defendant’s favor at the arbitration hearing and the award acknowledged plaintiff’s failure to appear. Plaintiff then filed a formal notice of rejection of award in the trial court and defendant responded by filing a motion to quash the rejection. Defendant cited Supreme Court Rule 91, which states:

“The failure of a party to be present, either in person or by counsel, at an arbitration hearing shall constitute a waiver of the right to reject the award and a consent to the entry by the court of a judgment on the award.” 134 Ill. 2d R. 91.

Plaintiff acknowledges Rule 91 but suggests that the trial court retains discretion to allow plaintiff to reject the arbitration award. Although no court has considered this question, we believe that the trial court had no choice but to grant defendant’s motion to quash plaintiff’s notice to reject the award. The language of Rule 91 is mandatory and is buttressed by Committee Comments which follow the rule:

“To permit any party or counsel to ignore the arbitration hearing or to exhibit an indifference to its conduct would permit a mockery of this deliberate effort on behalf of the public, the bar and judiciary to attempt to achieve an expeditious and less costly resolution of private controversies.
A party who knowingly fails to attend a scheduled hearing, either in person or by counsel, must be deemed to have done so with full knowledge of the consequences that inhere with this rule.” 134 Ill. 2d R. 91, Committee Comments.

The language of Supreme Court Rule 93 further strengthens this argument. Rule 93 allows only parties present at an arbitration hearing to reject awards. (134 Ill. 2d R. 93.) The Committee Comments following this rule limit the occasions in which a party may participate in a trial to those circumstances in which another party against whom no judgment has been entered rejects the award. This has not occurred in this case.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

BUCKLEY and O’CONNOR, JJ., concur.