author: JUSTICE EGAN

text:
    GORDON L. NORBERG, Plaintiff, v. CENTEX HOMES CORPORATION, Defendant and Third-Party Plaintiff-Appellee (R & D Thiel, Inc., Third-Party Defendant-Appellant).
    First District (6th Division)
    No. 1—91—2498
    Opinion filed January 22, 1993.
    Modified on rehearing April 30, 1993.

      Greenberg, Keele, Lunn & Aronberg, of Chicago (Mitchell S. Goldgehn and Gene H. Hansen, of counsel), for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Michael A. Pollard, Richard B. Foster III, and Moira Ann Dages, of counsel), for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Gordon L. Norberg, filed suit against the defendant, Centex Homes Corporation (Centex), to recover damages for personal injuries he suffered while working as a carpenter at a building site being developed by Centex. Centex filed a third-party complaint against the plaintiff’s employer, R & D Thiel, Inc. (Thiel), for contribution.

At the time of the plaintiff’s injury, Thiel had been insured under a workers’ compensation and employer’s liability policy with Optimum Insurance Company (Optimum). However, Optimum was placed in liquidation, and the Illinois Insurance Guaranty Fund (Fund or Guaranty Fund) undertook Optimum’s obligations with respect to the defense and indemnification of Thiel.

The case was heard by a jury. The evidence established that the plaintiff was working for Thiel as a trim carpenter installing permanent railings around a stairwell opening on the second floor of a townhouse. There was no temporary guardrail around the stairwell. The contract between Centex and Thiel expressly provided that Thiel was responsible for erecting a temporary guardrail around the stairwell opening. The plaintiff had not been instructed by Thiel to have a temporary guardrail in place while he installed the permanent guardrail. While the plaintiff was drilling a hole at the top of the stairwell, he slipped and fell down the stairs and was injured.

The jury returned a verdict on April 16, 1991, in favor of the plaintiff and against Centex. The jury calculated the plaintiff’s damages to be $380,438.24, but found the plaintiff 20% contributorily negligent. Accordingly, they awarded $304,350.59 to the plaintiff. The jury also returned a verdict on Centex’s third-party complaint and held Thiel 50% liable for the judgment.

On April 18, 1991, the plaintiff requested that a written judgment order be entered nunc pro tunc confirming the jury verdict that had been rendered on April 16. The judge granted the request and signed the written judgment order on April 18.

Also on April 18 the Illinois Supreme Court filed its opinion in Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155, 585 N.E.2d 1023, holding that an employer’s liability for contribution is limited to the extent of its workers’ compensation liability. That same day, Thiel filed a motion to conform the judgment to reflect the holding of Kotecki and a motion to limit Centex’s recovery to the amount allowed under the Illinois insurance guaranty fund act. (Ill. Rev. Stat. 1989, ch. 73, par. 1065.82 et seq.) The judge denied both motions; he held that the Kotecki decision would apply prospectively to cases that began trial on or after April 18, 1991, and would not apply retroactively to cases in which trial had begun before April 18, 1991.

Centex settled with the plaintiff for $260,000, reserving its right of contribution from Thiel. The trial judge reviewed the settlement and entered a finding under the Contribution Act (Ill. Rev. Stat. 1989, ch. 70, par. 301 et seq.) that the settlement was in good faith.

Thiel first maintains that Kotecki should be applied retroactively, and Centex maintains that Thiel has waived its right to contest the limits of contribution liability of an employer because Thiel did not raise the claim until after the jury verdict.

We note initially that both sides have taken inconsistent positions. In urging that Thiel has waived the argument, Centex contends that Thiel should have been aware of its right to claim a limitation on the extent of its liability for contribution before Kotecki was decided. On the other hand, in arguing that Kotecki should be given prospective application, Centex insists that Kotecki was in fact new law. Thiel insists that it did not waive its right to raise its argument until after the trial because it could not have anticipated the Kotecki opinion. But, in arguing that Kotecki should have retrospective application, Thiel maintains that Kotecki was not a change in the law but rather an “evolution” of the law.

We believe that Centex’s claim that Thiel waived its argument here is not to be dismissed lightly, particularly when we consider the concession made by Thiel, perhaps unwittingly, in its brief in this court:

“While litigants did not know the result prior to its filing, the Kotecki decision came as no great surprise. Undoubtedly, Defendant Centex’s counsel was, like the rest of the Illinois trial bar, monitoring this decision. That Centex finds the decision not to its liking is no surprise, but Kotecki is applicable to this case.” (Emphasis added.)

We further judge, however, that if waiver is present here, we should not invoke it.

The Kotecki opinion was published on April 18, 1991. It did not say expressly whether its application was to be prospective or retroactive. The opinion was without a dissent. Two justices abstained from participating. On May 9, the third-party plaintiff filed a petition for rehearing and alternatively requested that the opinion be modified to provide expressly that it was to apply only prospectively. On December 2, the supreme court denied the petition for rehearing with one justice dissenting and again with two justices abstaining from participation. The dissenting justice said that the opinion at least should address the question of whether the application of the opinion should be applied retroactively or prospectively. Kotecki, 146 Ill. 2d at 174 (Freeman, J., dissenting).

In Hux v. Raben (1967), 38 Ill. 2d 223, 230 N.E.2d 831, the supreme court said that the responsibility of a reviewing court for the maintenance of a sound and uniform body of precedent may override the considerations of waiver. We are not concerned here with the maintenance of a precedent but rather with the establishment of a precedent. Nonetheless we believe the rationale of Hux v. Raben is applicable here. The time of the application of Kotecki must be decided sometime by a reviewing court. Moreover, if we held that Thiel had waived the argument and the supreme court disagreed with our holding, it is not unlikely that the supreme court would remand the case to this court for the resolution of all remaining issues. (Cf. Waste Management of Illinois, Inc. v. Illinois Pollution Control Board (1991), 145 Ill. 2d 345, 585 N.E. 2d 606.) For the sake of finality, therefore, we will disregard any possible waiver of Thiel’s right to claim the application of Kotecki, and we will decide whether Kotecki should be applied prospectively or retroactively.

Thiel maintains that decisions are to be applied retroactively “unless the court expressly declares that its decision is a clear break with the past, such as when a court explicitly overrules its own past precedent, disapproves a practice *** it *** previously approved, or overturns a well-established body of lower court authority,” citing Larrance v. Human Rights Comm’n (1988), 166 Ill. App. 3d 224, 230, 519 N.E.2d 1203. A case is generally governed by the law as it exists when the judgment is rendered, not when the case is brought. GTE Automatic Electric Inc. v. Allphin (1976), 38 Ill. App. 3d 910, 913, 349 N.E.2d 654, aff’d (1977), 68 Ill. 2d 326, 369 N.E.2d 841.

However, courts have inherent power to determine whether their decisions should be applied prospectively or retroactively. (Larrance, 166 Ill. App. 3d at 230.) Whether a decision will be limited to prospective application depends upon whether the decision establishes a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. (Elg v. Whittington (1987), 119 Ill. 2d 344, 518 N.E.2d 1232.) If the decision establishes a new principle of law, the court should balance both sides of the issue in question by determining whether prospective application will advance or hinder the purpose of the rule, and the court should also consider whether there is any injustice or hardship in holding the decision retroactive. Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d 304, 329, 547 N.E.2d 437, 448.

Before the Kotecki case was decided, the supreme court held that contribution claims against employers were not barred by the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.). (Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382.) The court in Doyle added the following:

“In this connection, however, we feel compelled to invite the attention of the parties to the possible relevance of the provisions of section 5(b) of the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(b)). *** The extent to which any right of contribution from the employer under the Contribution Act may impact upon this right of recoupment by the employer has not been raised by the parties in their pleadings and consequently not briefed. At this point, absent the assistance of any guidance by the third-party plaintiff and the employer, and bearing in mind that this case is still at the pleading stage, we are not prepared to indicate how this aspect of the Compensation Act may affect the operation of the Contribution Act or what adjustments will be necessary because of the recoupment provision. Nevertheless, we caution that some accommodation between these two statutes may be in order.” (Doyle, 101 Ill. 2d at 14-15.)

Exactly what “accommodation” would be necessary was not indicated in Doyle.

After surveying the law of other States, the Illinois Supreme Court resolved this issue in Koteeki and adopted the Minnesota Supreme Court’s position, holding that an employer’s liability for contribution would be limited to the extent of its liability for workers’ compensation payments.

We do not agree with Thiel that the supreme court in Koteeki “took care to emphasize that it was not announcing a ‘change’ in the law previously stated in Doyle v. Rhodes.” Rather, the supreme court took care to emphasize that in Doyle v. Rhodes it had not decided the question of the extent of an employer’s liability for contribution:

“Contrary to [the third-party plaintiff’s] suggestion, the question, as to whether or not there is a limit on the amount that an employer may be found liable for, was not answered in Doyle.” Kotecki, 146 Ill. 2d at 162.

The majority in Koteeki addressed the third-party plaintiff’s claim that a limitation on the amount of contribution would require a “change” in the law and that any “change” should be left to the legislature. In rejecting that argument the court referred to Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, which abolished the doctrine of contributory negligence despite the presence of six bills in the legislature:

“The preceding discussion of legislative inaction prior to Alvis concerned a ‘change’ to be made in the common law. That discussion is equally applicable here, where the ‘change’ concerns how this court reconciles two, potentially conflicting, statutes.” Kotecki, 146 Ill. 2d at 162.

We read the majority opinion in Koteeki to be a recognition that its holding constitutes a change in the law. There is no doubt about the position of the dissenting justice:

“The rule established in this cause is so fundamental a change in the law of contribution that this court should avoid unnecessary confusion by the bench and bar of Illinois as to its application by explicitly stating whether it is to be applied retroactively or prospectively.” (Emphasis added.) (Kotecki, 146 Ill. 2d at 174 (Freeman, J., dissenting).)

We conclude, therefore, that the supreme court recognized that in Kotecki it established a new principle of law. That being so, we must next decide whether retroactive application of Kotecki would hinder or advance its application and whether retroactive application would create an injustice or hardship.

Thiel has not advanced any reason why retroactive application of Kotecki to cases which have been tried before Kotecki was decided would further its application. Instead, Thiel seeks only to deprecate Centex’s argument that the Kotecki decision substantially affects the liability among the parties and their respective trial strategies. Centex extends that argument on the question of hardship by pointing out that a direct defendant might be better served by abstaining from filing a third-party action against a culpable employer. The judge accepted that argument. He pointed out, and we paraphrase, that a jury, unaware of the limitation of the employer’s liability, might be more likely to return a larger verdict against two defendants than it would against only the direct defendant. We agree with the reasoning of the trial judge. Unable to foresee the result in Kotecki, many defendants undoubtedly made a different strategic decision, and retroactive application of Kotecki to these defendants would be unjust.

The Federal cases cited by Thiel support a limitation of its application to cases in which trial had not commenced on the date that the Kotecki opinion was filed. All of those cases involved pretrial proceedings. See Doran v. Corn Products-U.S. (N.D. Ill. 1991), 776 F. Supp. 368; Moore v. Wausau Club (N.D. Ill. 1991), 777 F. Supp. 619; Fosco v. Transport International Pool (N.D. Ill. Sept. 19, 1991), No. 91—C—62; Kalp v. American Can Co. (N.D. Ill. May 17,1991), No. 90—C—4910.

Because the Kotecki opinion was a case of first impression which was not clearly foreshadowed by Doyle and because retroactive application of the decision would hinder its application and result in prejudice to many defendants, we hold that the Kotecki decision applies only to cases in which trial had not yet commenced on the date the Kotecki opinion was released. In view of our holding, it is unnecessary to discuss Thiel’s argument that Kotecki was decided before a formal judgment order was entered. That part of the trial judge’s order denying Thiel’s motion to limit its liability in contribution to the extent of its workers’ compensation liability is affirmed.

We turn now to Thiel’s claim that Centex is barred from recovering from the Guaranty Fund more than the amount of its deductible of $100,000. The effect of the trial judge’s order was to require the Fund to pay Centex $130,000.

The Illinois insurance guaranty fund act (the Act) was established to protect policyholders against the insolvency of their insurers. (Ill. Rev. Stat. 1989, ch. 73, par. 1065.82; Lucas v. Illinois Insurance Guaranty Fund (1977), 52 Ill. App. 3d 237, 367 N.E.2d 469.) The Guaranty Fund obtains its funds by assessing all insurance companies licensed to transact business in the State of Illinois based upon a percentage of their net direct written premiums. (Ill. Rev. Stat. 1989, ch. 73, par. 1065.87—6.) Those assessments are passed along to the insurance-buying public in the form of higher premiums. (Adams v. Illinois Insurance Guaranty Fund (1980), 85 Ill. App. 3d 867, 407 N.E.2d 638.) When an insurer is declared insolvent, the Fund assumes the defense of that company’s insureds. In this case, the Fund took over Centex’s defense when its insurer, Optimum Insurance Company of Illinois, was declared insolvent.

The Fund covers all claims covered under the policy except:

“any claim for any amount due any reinsurer, insurer, insurance pool, or underwriting association as subrogated recoveries, reinsurance recoverables, contribution, indemnification or otherwise. No such claim held by a reinsurer, insurer, insurance pool, or underwriting association may be asserted in any legal action against a person insured under a policy issued by an insolvent company other than to the extent such claim exceeds the Fund obligation limitations set forth in Section 537.2 of this Code.” Ill. Rev. Stat. 1989, ch. 73, par. 1065.84—3(b)(v).

Centex was insured under a policy issued by Travelers Insurance Company to a limit of $500,000 per occurrence with a $100,000 deductible. Thiel argues that any recovery in contribution above Centex’s $100,000 deductible, which would be $30,000, is a claim “held by” Centex’s insurer, Travelers, and is therefore not a covered claim under the Act. The trial judge held that Centex’s claim was not “held by” Travelers because only .Centex, as a joint tortfeasor, held the right to bring that action and to recover under the Contribution Act.

Many other States have enacted legislation similar to the Illinois statute. All courts construing those statutes speak with one voice when addressing the rights of solvent insurers to sums of money which would come from a guaranty fund. In the first Illinois case to do so, Pierre v. Davis (1987), 165 Ill. App. 3d 759, 760, 520 N.E.2d 743, 744, the appellate court said:

“Since all Illinois licensed insurers contribute to the Illinois Guaranty Fund, the philosophy of the Fund is to have all potential claims against the Fund’s assets reduced by a solvent insurer, not the [F]und, wherever possible.”

In Pierre, the plaintiff’s workers’ compensation insurer had intervened in the action seeking recovery of its statutory lien. The court held that the plaintiff could not recover damages from the Fund, because the lien made the judgment an amount due an insurer as a subrogated recovery or otherwise. Similarly, in Herriford v. Boyles (1990), 193 Ill. App. 3d 947, 550 N.E.2d 654, the plaintiff’s insurer claimed a lien against his recovery; the court held that the insurance company’s lien could not be paid from the assets of the Fund. In Cardiel v. Warren (1989), 191 Ill. App. 3d 816, 548 N.E.2d 1081, the plaintiff had assigned to the insurance company her entire interest in any judgment paid. The court held that the plaintiff’s claim was “held by” the insurance company and, therefore, was not a covered claim under the Act.

The trial judge in this case accepted Centex’s argument that Cardiel and Pierre were distinguishable because Centex had not assigned its right to Travelers and Travelers had not asserted a lien. Centex repeats that argument in this court. The issue, therefore, boils down to whether we may properly say that the claim is, in fact, held by Centex rather than Travelers.

In this court Centex takes pains to distance itself from any suspicion that Travelers will ultimately receive any money the Fund might pay Centex. We disagree with Centex that there is nothing in the post-trial proceedings that might be construed as a concession that Travelers would be the ultimate beneficiary of any money paid to Centex by the Fund. At the post-trial motion, Thiel’s attorney argued that the $30,000 was going to go to Travelers. The following occurred:

“[THIEL’S ATTORNEY]: But nobody has ever challenged the idea that it’s Travelers’ $30,000 we are arguing about here, not Centex’. Travelers is the real party in interest for getting its hands on that $30,000. It is not going into Centex’ pocket.
JUDGE: That’s conceded. That ultimately Travelers would have a claim against Centex for the $30,000 that it collects.
[THIEL’S ATTORNEY]: Right.
JUDGE: Everybody agrees with that.
* * *
[THIEL’S ATTORNEY]: I mean, eventually that $30,000 is Travelers’ claim and they’re going to want their money. It’s not going to be money that goes into the pocket of Centex. It’s going to be money that goes into the pocket of Travelers.
JUDGE: Yes, but that’s not what the statute prohibits. That’s the problem I have. The statute doesn’t prohibit them from just — you know, Centex distributing the whole $130,000 to Travelers, if they felt generous, saying ‘You folks had the usual expense for a defense, ah, we’ll just give it to you.’
* * *
[THIEL’S ATTORNEY]: You’re not denying that the $30,000 is Travelers’?
[CENTEX’S ATTORNEY]: I don’t honestly know where it’s going to go, Gene. I really don’t, how its [sic] going to get parceled out.
JUDGE: The assumption would be that they would.
[CENTEX’S ATTORNEY]: The assumption would be that it’s going to go to Travelers. I agree with that.
* * *
JUDGE: I have a very strong suspicion that $30,000 is going to wind up in Travelers’ hands.
[THIEL’S ATTORNEY]: $30,000 would wind up in Travelers’ hands.
THE COURT: Exactly.” (Emphasis added.)

We believe that colloquy between the judge and counsel discloses a tacit concession that Travelers would ultimately take steps to insure that the $30,000, or at least a part of it, went to Travelers. Indeed, a strong argument may be made that the agents for Travelers would be acting in violation of their fiduciary obligations to Travelers if they did not take such steps.

Centex also argued in the trial court and continues to argue in this court that, since Illinois does not permit direct actions against insurers, Travelers could not pursue a contribution claim against Thiel. The trial judge’s acceptance of that argument appears to be the linchpin of his holding. We believe the recent case of Prudential Insurance Co. v. Romanelli (1993), 243 Ill. App. 3d 246, is a clear answer against Centex’s argument. In that case Prudential settled a claim against its insured, who had filed a claim for contribution against a third party. The trial judge ordered that Prudential pursue its contribution claim in its own name. The appellate court upheld the order on the ground that Prudential became the subrogee of its insured under the express provisions of the Contribution Act. (Ill. Rev. Stat. 1989, ch. 70, par. 302(f).) The appellate court held that Prudential became the real party in interest and that the insured no longer had any interest in the subrogated claim. So also in this case, Travelers became the subrogee of $30,000 of any claim Centex might have against Thiel for contribution. We hold, therefore, that Travelers held a “claim” for $30,000 regardless of whether it sought to formally assert it and that its claim was not a covered claim under the Act. To hold otherwise would be an invitation to insurers to avoid the intent of the Act by sub rosa arrangements with their insureds.

Thiel also argues that Centex’s claim to $30,000 from the Fund is barred by what has been described as the “non-duplication of recovery” provision in the Act. (Ill. Rev. Stat. 1989, ch. 73, par. 1065.96(a).) That section of the Act provides as follows:

“Any insured or claimant having a covered claim against the Fund shall be required first to exhaust his rights under any provision in any other insurance policy which may be applicable to the claim. Any amount payable on a covered claim under this Article shall be reduced by the amount of such recovery under such insurance policy.” Ill. Rev. Stat. 1989, ch. 73, par. 1065.96(a).

It is the position of Thiel that Centex must first exhaust its claim against Travelers before it may recover from the Fund. We agree with Thiel. We do not agree with Centex that Thiel has waived this argument or that the nonduplication provision refers only to uninsured motorist cases. The language of the Act imposes no such restriction on its application. We do agree with Thiel that if the claim asserted by Centex is a covered claim, Centex is obliged to exhaust its right to $30,000 from Travelers first. A strong argument may be made that the nonduplication provision was designed to prevent any sub rosa arrangements between an insured and a solvent insurer at the expense of the Fund.

For these reasons we reverse that part of the order which denied Thiel’s post-trial motion to limit Centex’s recovery to $100,000 from the Fund.

Judgment affirmed in part and reversed in part.

McNAMARA, P.J., and RAKOWSKI, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK FERNS, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—1723
    Opinion filed May 14, 1993.

      Randolph N. Stone, Public Defender, of Chicago (Kyle Wesendorf, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Donald Lyman, and John Magro, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

The defendant, Mark Ferns, was indicted for the first degree murder and aggravated criminal sexual assault of Ruth Casillas. He was convicted of first degree murder and aggravated criminal sexual assault and was sentenced to 80 years’ imprisonment for first degree murder and 30 years for aggravated criminal sexual assault, the sentences to be served concurrently. The defendant appeals only from his conviction for first degree murder. He first contends that the evidence was insufficient to support the jury’s determination that he committed first degree murder.

Ruth Casillas, also known as “Susie,” lived with her boyfriend, Jose Alvarez. She and Alvarez were at a bar at approximately 7 p.m. on March 26, 1988, when they purchased a ring from the defendant, whom they both knew. The defendant left the bar. Alvarez saw Casillas drink four beers at the bar between 5:30 p.m. and 7:30 p.m. Alvarez went home at around 7:30 p.m.

At approximately 3:30 a.m. on March 27, 1988, Chicago police officer Swistowicz was assigned to meet a possible robbery victim. Swistowicz and his partner met the defendant, the alleged robbery victim; the defendant was waiting for them in the street in front of his house. He did not appear to be excited, but did have a small cut on his lower lip. He had a scratched and red right hand. The defendant said that he had been drinking. The defendant looked sober to Swistowicz.

The defendant told Swistowicz that he was robbed at the intersection of 38th Street and Kedzie Avenue while he was stopped in his car at a traffic light. He explained that two men reached into his car, hit him in the mouth, dragged him out of his car, and kicked him in the face and chest. The two men took his car and a black leather jacket; the defendant then went to his house to call the police.

The police officers took the defendant to St. Anthony’s Hospital to obtain medical attention for the defendant and to make phone calls. When they arrived at the hospital the defendant told Swistowicz he did not need medical attention. The defendant told the officers that there was an Hispanic, woman named Susie in his car with him when he was robbed.

Chicago police detective Ceaser and his partner met Swistowicz and the defendant at 5 a.m. at the hospital. The defendant told Ceaser that at approximately 2:30 a.m. he and Susie were en route to a tavern located at Archer Avenue and Kedzie Avenue when they were attacked; Susie had asked the defendant to take her to that tavern, but he was not sure where it was. Ceaser and the defendant left the hospital and tried to find the tavern, but were unsuccessful. The police learned Susie’s address and went to her apartment, where they met Alvarez. Alvarez explained that Susie might be his girlfriend, Ruth Casillas, and that she had not returned home.

Alvarez accompanied the defendant and Ceaser back to the hospital, where Ceaser learned that a woman’s body had been discovered at 33rd Street and Kedzie Avenue. Ceaser then took Alvarez and the defendant to a police station. At the station, the defendant told Ceaser the following: He had been driving around and drinking with some friends earlier in the evening on March 26 when they went to a tavern where they met Susie. Susie asked the defendant to help her search for Alvarez, and the two went to another bar where Susie had a beer with a man and danced with another man. Susie became upset and again asked the defendant to help her find Alvarez. They left in his car and were robbed. The defendant told Ceaser that one of the robbers drove away with Susie in the defendant’s car while another followed in a dark car.

Officer Bruce Johnson was searching for the defendant’s car. He drove behind the WVON radio station at 33rd Street and Kedzie Avenue and discovered Casillas’ body at approximately 5:30 a.m. on March 27. The road leading behind WVON is a dirt road that is “[v]ery bumpy, very narrow, about a car and a half [in] width.” When Johnson drove down the road, he saw the body of a white female. He then left the scene by backing his car out the dirt road and went to locate his sergeant.

Chicago police detective Grimaldi went to the scene where the body was located. There was debris such as roofing materials, siding, and tires along the dirt road. The dirt road was the only way in and out of the area behind the radio station. He observed the woman’s body. Her skull appeared to be crushed, she was lying facedown on the ground, there was blood and matted hair around her head, she was wearing jeans that were pulled down around her left ankle leaving her naked from the waist down, she did not have a shoe on her right foot, and one of her shoes was on the ground approximately 15 feet from her head. The exposed part of her body had bruises, cuts, scratches, and feces on it. There was a car bumper to the north of her body that had “blood splattered and matter on it,” and there was blood and “matter” on nearby wood and fencing. Grimaldi searched the area but did not find a crowbar, tire iron, or any similar object.

Grimaldi learned that the woman was Casillas; he left the scene to go the station to talk to the defendant. He spoke with the defendant and Detective Elliott, and then located John Galvin, a friend of the defendant. Galvin and Efran Cantu, another friend of the defendant, came to the police station where Grimaldi spoke with both men. Then, Grimaldi “reinterviewed” the defendant at approximately 1 p.m. Elliott read the defendant his Miranda rights and the defendant then made a statement to Grimaldi and Elliott. The defendant was arrested for first degree murder at 1:30 p.m.

Chicago police detective Harris located the defendant’s 1977 Oldsmobile in Cicero, Illinois. The bumper and molding found at the scene where Casillas’ body was found came from this car. Harris noticed that the rear bumper was missing and that there was no tire iron, hammer, or crowbar in the car. Harris went to the scene where Casillas’ body had been found and saw the car bumper and its plastic molding. He and his partner put the bumper and molding in their car trunk and took them to the crime lab to be processed; the mobile crime laboratory never processed these items at the scene. According to Harris, the bumper had “blood and gray matter on it.” Harris attempted to turn his car around at the scene but could not; he backed out on the dirt road.

The defendant’s car was examined by several Chicago police department employees while it was in Cicero. Mobile crime laboratory officer Keating found blood on the driver’s door with a hair-like fiber in it, blood on the passenger headrest covering “quite a bit of the area that you would be placing your head on,” a small pool of blood on the driver’s side floor, blood on the rocker panel of the driver’s door, blood on the passenger and driver’s seats, and a large fecal stain on the passenger’s seat. Keating also observed blood on the trunk lid near the right front fender. He also found a juice bottle and a whiskey bottle in the car. The defendant’s fingerprints were on the whiskey bottle.

Christine Braun, a serologist from the City of Chicago crime detection laboratory, testified that Casillas had type A blood and that the blood from the scene and on the bumper, molding, and headrest was type A. Several items of the defendant’s clothing tested positive for the presence of blood, although Braun could not determine how long the blood had been on these items. Forty-four percent of the United States population has type A blood.

The Cook County deputy medical examiner, Mary Jumbelic, performed the autopsy on Casillas’ body. Jumbelic found 24 injuries on Casillas’ head, including seven “pattern” injuries that were consistent with the use of a blunt instrument and that indicated to a reasonable degree of medical certainty that the head struck or was struck by “something patterned.” The “most significant” injury on the head was a “very large open wound” on the right side of the head measuring 6 inches by 4.5 inches that went completely into the skull. Jumbelic testified that the skull was crushed and “a lot of the brain material beneath it was gone.” Casillas also had bruising on her scalp and eyes and lacerations on her head and in her mouth. On her buttocks and one leg she had “brush bum abrasions” which are “scraping[s] of the superficial skin over an area that indicates a dragging type of force.” Jumbelic found many additional bruises on the chest, abdomen, back, arms, hands, and legs. Casillas had a blood-alcohol level of approximately .300 and a urine alcohol level of .390; Jumbelic agreed that this meant that Casillas was “very drunk” at the time of her death.

Jumbelic explained that some of Casillas’ bruises “impl[y] that something long and thin has been pressed against the [body]” but noted that she could not say to a reasonable degree of medical certainty that they were caused by such an object. Jumbelic testified that the cause of Casillas’ death was “cranial cerebral injuries which means injury to the skull and brain due to blunt trauma.” She could not say that any one specific head injury caused Casillas’ death; she was taking all the injuries together as the cause of death. She could not say to a reasonable degree of medical certainty that the crushing injury on the right side of the head did not cause Casillas’ death. While all of Casillas’ injuries were inflicted at approximately the same time, the massive crushing injury could obscure other contemporary injuries.

Jumbelic testified that the large crushing injury could have been caused by a car tire, but explained that additional crushing injuries, the pattern injuries, and the facial injuries were not entirely consistent with a car running over Casillas. According to Jumbelic, Casillas was alive at the time the major crushing injury occurred.

Efran Cantu testified that he went with John Galvin and the defendant in the defendant’s Oldsmobile to a bar at approximately 7:30 p.m. on March 26. The stains shown in the State’s pictures of the front seat of the defendant’s car were not there when the three were driving around together. The defendant left Cantu and Galvin and entered the bar. After approximately 10 minutes, the defendant returned to the car with $10. Galvin and the defendant then purchased liquor, and Cantu saw the defendant drink although he did not appear to be drunk. Cantu and the defendant went to a total of three bars together. They arrived at the third bar at approximately midnight, and Cantu saw the defendant “talking to some lady.” When Cantu asked the defendant for a ride home, the defendant told him “he was going to go do something” and left the bar with the lady.

Galvin testified that he lived directly across the street from the defendant. He went with the defendant and Cantu in the defendant’s car on March 26. The defendant went into a bar to sell a ring; they used the money to buy gasoline and whiskey and orange juice. Galvin and the defendant drank the whiskey and juice from glasses while driving and while waiting for Galvin’s girlfriend. The defendant did not appear to be drunk.

Galvin was pulling his car into his garage at approximately 1 a.m. when he saw the defendant walking toward him from the defendant’s driveway. The defendant asked Galvin to follow him in his car and told Galvin that he was in trouble. Galvin noticed that the defendant had blood on his pants, hands, jacket, and lip, and smelled like vomit. Galvin followed the defendant but could not keep up with him because the defendant “was driving too fast.” During the trip, Galvin blinked his bright lights at the defendant to make the defendant stop on two occasions. The defendant told Galvin that he was going to drop off his car and asked Galvin to meet him a few blocks away in Cicero. Galvin drove to the meeting place, met the defendant, and began to drive home. The defendant did not appear to be drunk and ran to meet Galvin! On the way home, the defendant only told Galvin that he was in trouble and asked to be let out of the car about one quarter of a block from his home. Galvin testified that the defendant “was out of it,” but explained that he meant the defendant was gazing out the window and not talking. Galvin dropped the defendant off and went home.

The defendant made a signed court-reporter’s statement to Assistant State’s Attorney Bartolomenti. In that statement the defendant said the following: He was out with Cantu and Galvin when he sold a ring for $10 to Alvarez and Casillas, whom he also knew under the name Susie. He bought liquor with the money. After Galvin left, the defendant went to several bars, and at approximately 11:30 p.m. he went to -the same bar where he sold the ring. He spoke with Casillas at the bar, and she asked him to help her find Alvarez because they had a fight. At approximately midnight, he left the bar with Casillas and went to another bar. Alvarez was not at the second bar, and they left together and drove around for awhile. The defendant drove behind station WVON and parked the car. He stated that Casillas “started putting her hand on my leg and started feeling up on me,” and that he told her to stop because he thought of his fiancee. Casillas started removing her pants by pushing them down over one shoe; she repeatedly told the defendant to take his pants off, and “started playing around, slapping [him].” The defendant told Casillas to stop, but Casillas slapped him again and then he slapped her. A fight broke out and he began hitting Casillas “real hard” and “punching her about three or four times in the face in the mouth area.” The redness on his right hand knuckles was from punching Casillas. During the fight, he grabbed Casillas by placing both hands around her neck and then shaking her. Casillas was bleeding from her mouth and nose, and had a large amount of blood in her mouth. The defendant noticed blood on his hands, jacket and car; Casillas seemed dizzy and “drowsy, like she was out of it.”

The defendant opened the passenger door and pushed Casillas out of the car, but she crawled back in before he could close the door. She “was still bleeding, but she had come to attack [him] again.” He pushed her out of the car again and shut the door; her pants stuck in the door. The defendant then exited from the passenger door, and Casillas, who was lying on the ground by the door, started grabbing his legs. He pushed her away and kicked her “hard” in the face “seven to ten times.” He picked up her hand and dragged her approximately eight feet away from the car. She was not moving her body from her location, and “was lying on the ground, just moaning, moving her arms and legs.” The defendant returned to his car, and “drove forward to get [the] car out.” Because of the debris and garbage, he had to turn the car, reverse, and go forward in approximately “a four-point turn” to leave. When he first reversed, he “hit more debris behind [him at the] back bumper.” He then drove home, asked Galvin to follow him and left his car in Cicero.

The defendant first contends that the evidence is insufficient to establish his guilt of first degree murder; he asks this court to reduce his conviction to involuntary manslaughter. The defendant was charged with first degree murder under three sections of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)), and thus could have been found guilty of murder if he alternatively had an intent to kill or do great bodily harm to Casillas (section 9—1(a)(1)), knew that his acts created a strong probability of death or great bodily harm to Casillas (section 9 — 1(a)(2)), or if Casillas was killed while the defendant was attempting or committing a forcible felony (section 9—1(a)(3)).

It would serve no purpose to discuss the many cases cited by the defendant and the State on the question of whether the defendant was proved guilty of first degree murder. Suffice it to say, first, that a killing in the commission of a felony is first degree murder. The defendant does not contest his conviction of aggravated criminal sexual assault, a forcible felony. Consequently, the defendant impliedly concedes that the evidence establishes that he was guilty of a killing in the commission of a forcible felony. Moreover, even in the absence of such a concession, we find that the evidence supports it. A fact finder was not required to accept everything in the defendant’s statement. After considering all the circumstantial evidence with parts of the defendant’s statement, a fact finder could reasonably conclude that he assaulted Casillas with the intent to have sexual relations with her. Second, the evidence is more than sufficient to establish that the defendant brutally beat the deceased, ran over her and left her to die. Even in the absence of any aggravated sexual assault, the evidence shows that the defendant intentionally committed acts which he knew created a strong probability of death or great bodily harm to Casillas. The location of the scene of the killing, the extensive and brutal nature of Casillas’ injuries, the lies the defendant told the police, including the calculated fabrication of a robbery, the use of Galvin to get rid of the car and the defendant’s own statement add up to an overwhelming case establishing his guilt of first degree murder.

The defendant next contends that the trial judge committed reversible error by restricting his cross-examination of Officer Elliott. Elliott testified that he spoke to the defendant for 30 to 45 minutes beginning at 1 p.m. on March 27 and then went to the defendant’s house, where he retrieved a soaking wet black leather jacket. Elliott was present when Assistant State’s Attorney Bartolomenti interviewed the defendant at 3:30 p.m. and 7 p.m.

On cross-examination a defense attorney requested a side-bar during which the following occurred:

“DEFENDANT’S ATTORNEY: Judge, at this time I’d like to *** ask Detective Elliott questions about the substance of the oral conversations that he had with Mr. Ferns prior to Mr. Bartolomenti getting there. ***
STATE’S ATTORNEY: We’d object. It’s hearsay.
* * *
DEFENSE ATTORNEY: It’s clearly admissions, Judge.
* * *
JUDGE: Sustain the objection.
DEFENSE ATTORNEY: Nothing further on cross.”

We first observe that the defendant has not properly preserved this question for review. The defendant did not make an offer of proof after the line of questioning was denied, and it is not possible to tell what information the defense was hoping to obtain. The purpose of an offer of proof is to inform the trial court and opposing counsel of the nature and substance of the evidence to be introduced and to “preserv[e] that evidence for appellate review.” (People v. Sanchez (1989), 131 Ill. 2d 417, 425, 546 N.E.2d 574, 579; see also People v. Robinson (1977), 56 Ill. App. 3d 832, 371 N.E.2d 1170.) Second, we do not see how the defendant was prejudiced if, as his attorney told the court, his statements were “admissions.” We conclude that no error has been shown in the restriction of the cross-examination of Officer Elliott.

The defendant cites In re W.D. (1990), 194 Ill. App. 3d 686, 551 N.E.2d 357, and People v. Lettrich (1952), 413 Ill. 172, 108 N.E.2d 488. Neither supports the defendant’s argument.

In re W.D. involved a refusal by the judge to permit a defendant from eliciting all of the defendant’s conversation, part of which the State brought out on direct examination. That case would be in point if the State in the case before us had brought out part of the previous conversations the defendant had had with Officer Elliott. The State did not bring out the previous conversations. In Lettrich, the defendant, who had been sentenced to death, contended that his uncorroborated confession was coerced by incessant questioning and threats by one police officer in particular. The defendant had repeatedly denied any involvement in the crime. The officer named by the defendant told the defendant he would have to submit to a polygraph examination and asked the defendant a series of questions. That officer was asked on cross-examination “to state all the questions asked of defendant while the polygraph machine was being used.” (Lettrich, 413 Ill. at 177.) The officer said he could not do that without examining his notes which would take 15 minutes. The trial judge refused to recess the trial for 15 minutes. The supreme court held that the judge’s refusal to permit the witness to take the 15 minutes to review his records was error. Lettrich has no application to this case.

The defendant next contends that the judge erred by refusing to excise certain language from the defendant’s statement. The heading of the statement which had been received in evidence was as follows: “RE INVESTIGATION (FATAL BEATING OF RUTH CASILLAS A/K/A SUSIE CASILLAS).” The State’s Attorney read the statement to the jury but not the heading. The defendant’s attorney asked that the heading be removed, but the judge denied the request, stating, “He signed each and every page.” We are not convinced that any error occurred.

As noted, the prosecutor did not read the heading to the jury. In addition, the record does not establish that the statement went to the jury. When discussing the defendant’s motion to strike the caption, the judge pointed out “in advance” that not everything that is admitted in evidence goes to the jury. Later, when discussing what ex-Mbits would be permitted to go to the jury, the judge allowed some pictures to go to the jury, but not all. No reference was made to the statement. The responsibility on appeal for showing that error occurred is on the defendant, and he has not shown it. (People v. Edwards (1978), 74 Ill. 2d 1, 383 N.E.2d 944.) In addition, we find nothing prejudicial in the wording of the caption. Contrary to the defendant’s argument, it was an accurate description of the investigation.

The defendant’s last claim of error concerns three parts of the State’s closing argument.

During the defendant’s closing argument, his attorney contended that Casillas was killed by a car and not a blunt instrument. He said:

“They love to throw the word hammer. Did you see a hammer? Anybody got a hammer, a crow bar or a piece of wood or anything with blood or hair or anything on it? No. Nothing existed from this.
* * *
Well, the truth is there is no instrument. *** Mark Ferns didn’t have an instrument. No question.”

In the State’s rebuttal closing argument, the following occurred:

“STATE’S ATTORNEY: Ladies and gentlemen, you know the instrument that he is using, because it is in a car. You know that he had plenty of time to stuff that wrench. Counsel makes all this big point about where is the lug wrench. Why don’t we ask Mark Ferns where the lug wrench is. It’s where he dumped it.
DEFENSE ATTORNEY: Objection.
JUDGE: Sustained.
STATE’S ATTORNEY: Did he dump it in Cicero where he left his car, or did he dump it in the alley when he is on his way to his house?
DEFENSE ATTORNEY: Objection.
JUDGE: Sustained.”

The defendant contends that the State’s argument amounted to an impermissible reference to the defendant’s failure to testify.

In People v. Moore (1991), 215 Ill. App. 3d 836, 576 N.E.2d 900, the defendant did not testify and the prosecutor asked in closing argument: “Where are the guns? Well, I’ll tell you, I know one guy who knows where they are, and he is sitting over here in this chair.” (Moore, 215 Ill. App. 3d at 842.) The appellate court said that these comments improperly called attention to the defendant’s failure to testify but held that they were not reversible error because the defendant had invited them. The defense had argued: “Did they find food stamps, did they find guns? No.” Moore, 215 Ill. App. 3d at 842.

As in Moore, the prosecutor’s remarks in the case before us were invited. Moreover, the judge’s immediate sustaining of the objection reduced any prejudicial effect (see People v. Campbell (1990), 199 Ill. App. 3d 775, 557 N.E.2d 556), as did the court’s instructions that closing arguments are not evidence. (People v. Rowe (1983), 115 Ill. App. 3d 322, 450 N.E.2d 804.) In addition, the judge also instructed the jury not to consider the defendant’s failure to testify. Therefore, no reversible error was created by these remarks.

Finally, we hold that the prosecutor’s statements could not have materially influenced the defendant’s conviction when the record as a whole shows an overwhelming case for the prosecution. People v. Scott (1990), 194 Ill. App. 3d 634, 551 N.E.2d 288.

In another part of the closing argument the prosecutor said this:

“Now, even if you don’t believe that he ran over her head, I would submit to you, he still does an act which shows that he was going to kill her.
Now, I would submit to you, we have proven that he intended to kill her. But if you are to believe that he didn’t run over her, if you were to believe that was not what happened, then he still caused the acts which caused her death. And how did he do this? Well, ladies and gentlemen, he leaves a severely beaten woman, who is impaired and obviously severely drunk, who can’t fend for herself, who probably drank all of his liquor that night, lying on the dirt road, even if she is conscious. He leaves [her there] lying on a dirt road. What does he do? He goes and gets rid of the car. And he is with these people, with his friend, with the police, with her husband. He is in a hospital and never tells anybody about it. Just leaves her out there in that condition.
After she has been beaten, she has defecated on herself, she is lying there, I would submit to you that you know those acts will cause her death or create a strong probability of death or great bodily harm. He was the one who left her there that night. Nobody else.”

The defendant contends that the prosecutor’s remarks did not accurately state Illinois law regarding what conduct constitutes first degree murder. We construe the defendant’s argument to be that one may never commit murder with one’s fist. That is not the law, as the cases cited by the defendant teach. (People v. Gresham (1979), 78 Ill. App. 3d 1003, 398 N.E.2d 398; People v. Drumheller (1973), 15 Ill. App. 3d 418, 304 N.E.2d 455.) The jury heard evidence from which it could infer that the defendant inflicted blows upon Casillas with some type of instrument. Moreover, in the defendant’s statement, he said that he kicked Casillas “hard” in the face “seven to ten times.” The record clearly supports the prosecutor’s argument and that argument did not misstate the law.

We further note that no objection was made to the argument, nor was it assigned as error in the post-trial motion. Consequently, any error would be waived. Considering the nature of the State’s case, the error could not be considered plain error.

The prosecutor also argued as follows:

“What you see in this case is counsel stretching the tarpaulin to cover every possible base in this case. He has got to cover it all the way. He is not covering the infield. He is trying to cover the outfield. He is trying to cover the whole stadium with his lies.
DEFENSE ATTORNEY: Objection.
JUDGE: Sustained. Sustained. Stricken.”

Understandably, the State does not seek to justify this argument. Instead, it maintains that the defendant was not prejudiced because of the judge’s immediate ruling sustaining the objection and striking the State’s comment. The State also maintains that any error was harmless beyond a reasonable doubt in view of the overwhelming nature of the State’s evidence. Although the comment was error, we agree with the State. In the principal case cited by the defendant, People v. Emerson (1983), 97 Ill. 2d 487, 455 N.E.2d 41, the supreme court reversed a murder conviction and death sentence. The supreme court held that several of the State’s arguments were improper as was the introduction of prior consistent statements made by the principal witness for the State. The supreme court pointed out that the State’s case depended solely upon the credibility of the one witness for the State and the credibility of the defendant. We repeat that this case, unlike Emerson, was an overwhelming one for the prosecution, and the single comment by the prosecutor to which an objection was sustained was the only error.

For these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA, P.J., and RAKOWSKI, J., concur.


author: JUSTICE SCARIANO

text:
    ANNA CARTER, Plaintiff-Appellant, v. WALTER JOHNSON, Defendant-Appellee.
    First District (2nd Division)
    No. 1—91—1355
    Opinion filed May 18, 1993.

      Stanley L. Hill & Associates, P.C., of Chicago (Stanley L. Hill, Darlene A. Blaszczak, and Christopher W. Graul, of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago (Williams P. Dorr, Hugh C. Griffin, and Diane I. Jennings, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court;

On September 23, 1978, plaintiff Anna Carter consulted defendant Walter Johnson, M.D., regarding abnormal menstrual bleeding accompanied by abdominal pain which she had been experiencing for some time. After examination, defendant diagnosed her as suffering from a degenerating fibroid tumor approximately as large as a three-month pregnancy inside her uterus. Defendant decided that the proper treatment was simply to track the development of the tumor.

Defendant saw plaintiff again in April 1979, and in October 1980, and each time he found that the tumor was still growing. Since defendant was fairly certain that the growth was benign, he determined that surgery was not yet indicated. However, when plaintiff visited defendant on February 4, 1982, he recommended that she have a hysterectomy because the tumor had grown to a size approximating that of a five-month-old fetus.

On February 22, 1982, plaintiff was admitted to the University of Chicago’s Lying-in-Hospital, where defendant had surgical privileges. She was prepared for surgery that night, and the next morning defendant, assisted by a resident, Dr. Mitchell, performed the hysterectomy. Defendant’s post-operative notes indicated that the 1-hour-and-45-minute operation was routine and that no complications had developed.

After plaintiff regained consciousness on the day of the surgery, she was experiencing some pain and running a low-grade fever of 38 degrees celcius (100.4 degrees fahrenheit). Although the fever persisted for the next couple of days, it was not until February 27 that an infection was suspected, and she was given antibiotics in an effort to combat it.

On March 2, defendant left for a planned vacation, leaving plaintiff in the primary care of Dr. Jones, another physician at the hospital. At about 4:30 p.m. that day, a resident noticed a foul-smelling discharge emanating from plaintiff’s vagina. After examination, it was determined that her vagina contained bowel contents which most likely were the cause of her infection and fever. On March 3, a large amount of foul-smelling drainage, which later proved to be bowel contents as well, was also discovered at the incision site. The incision was thus reopened and cleaned with hydrogen peroxide.

It was determined soon thereafter that plaintiff had a fistula (tract) between her rectum and her vagina which was funneling bowel contents out of her rectum and into her vagina. Consequently, a bowel surgeon, A.R. Moosa, M.D., was consulted, and plaintiff was transferred to Billings Memorial Hospital. Dr. Moosa’s prognosis was that surgery was necessary to repair the hole in the bowel wall, but first he had to wait until the wound which had been reopened healed sufficiently. When Dr. Moosa performed the necessary reparative operation on April 12, he discovered that there were two fistulae, one between the rectum and the vagina, and one between the sigmoid colon and the vagina. He repaired the holes, but since the wounds had to be allowed to heal, he preformed a temporary diverting colostomy in order to reroute bowel contents to prevent them from reaching the colon.

Plaintiff was released from the hospital on April 25, 1982, and was readmitted for 11 days in October 1982 to have the colostomy bag removed. Additionally, she was hospitalized on four occasions between July 1982 and December 1989 to clear small bowel obstructions.

On December 2, 1986, plaintiff filed a three-count complaint against defendant, alleging specific negligence in count I, res ipsa loquitur in count II, and failure to obtain informed consent in count III. Plaintiff ultimately dismissed count III of the complaint, and the case went on to be tried before a jury beginning in November 1990.

Defendant testified first for plaintiff as an adverse witness. He admitted that he was the surgeon in charge of the operation and that it was his responsibility throughout the entire procedure. He also admitted that the fistulae and the infections which plaintiff sustained after the surgery were the direct result of the hysterectomy which he performed, and that obviously had the surgery proceeded “smooth as usual,” plaintiff would not have suffered the aftereffects described above.

Defendant reaffirmed what he had noted in the post-operative report, namely, that there were no major complications during the surgery, that he noticed no visible adhesions (scar tissue) during the operation, and that plaintiff tolerated the procedure well. Defendant also stated, however, that there was “an abnormal attachment, possibly due to some previous infection,” between her uterus and her sigmoid colon.

Defendant hypothesized that there were several possibly negligent ways in which the fistulae could have been caused. First, fistulae will form if the tissue wall of the bowel or the sigmoid colon is damaged by the unskilled use of a scalpel, scissors, or clamp, all of which he utilized. He denied, however, that either he or Dr. Mitchell damaged plaintiff’s bowel wall in such a fashion during the surgery. Defendant also opined that a fistula could result if a surgeon placed an errant stitch in the bowel wall, as bowel contents would then run along the thread into the vaginal area, causing the tissue around the thread to become infected and ultimately to collapse, thus causing a larger schism. He denied, however, that he stitched the wall between plaintiff’s rectum and the vagina.

Dr. Moosa, called by plaintiff, testified next through the medium of a videotaped deposition. He stated that plaintiff’s complications, primarily the resulting fistulae, were unquestionably a direct result of her hysterectomy. He further stated that while such complications are rare and that a hysterectomy generally can be performed safely, the organs adjacent to the uterus occasionally can be damaged during surgery without negligent conduct. He testified, however, that it was impossible to determine which of the many possible causes actually occasioned plaintiff’s injuries.

Plaintiff’s expert witness, Julian Ullman, M.D., who is board-certified in obstetrics and gynecology, next took the stand and testified that plaintiff’s fistulae were a direct result of the hysterectomy performed by defendant. He stated that in his opinion, to a reasonable degree of medical certainty, defendant deviated from the applicable standard of care in causing those complications to occur, because fistulae should not result from a routine hysterectomy, which was how the post-operative report characterized the instant procedure. He also testified that there was no evidence in the post-operative notes of adhesions or any other mitigating factors which could have caused defendant any problems during the procedure; in any event, Dr. Ullman opined, a skilled surgeon would instantly see such adhesions and deal with them accordingly. He concluded that the fistulae were possibly caused by the careless use of a clamp, scalpel, scissors, or suture, any of which would be an obvious breach of the standard of care.

David Zbaraz, M.D., a board-certified obstetrician-gynecologist and associate professor at Northwestern University, testified as an expert witness on behalf of defendant. After first noting that plaintiff was treated for pelvic inflammatory disease (PID) in 1978, he stated that one common side effect of that disease is adhesions which form in the pelvic region. He explained that adhesions are commonly formed by the fibroid tumor in the uterus itself; as the tumor grows, it inflames the entire region, thus causing scar tissue. Dr. Zbaraz testified that it was very possible that, as the uterus enlarged, it displaced the rectum, forming adhesions connecting the back of the uterus to the bowel wall. He further opined that given the location and diminutiveness of those adhesions, it would be almost impossible for the surgeon to see them until he had separated the uterus from the bowel wall. Additionally, if pulling the adhesions did not cause a perforation or any bleeding, the surgeon would not see them at all, and they would not cause complications until the bowel wall ruptured several days or a week later.

Dr. Zbaraz opined that the foregoing set of circumstances was the most likely cause of the fistulae, because, in his opinion, to a reasonable degree of medical certainty, the fistulae did not form until several days after surgery, and he felt that if the wall of the bowel or sigmoid colon had been damaged with a scalpel or another surgical instrument, fecal material would have been discovered in the vaginal area almost immediately. Accordingly, he opined to a degree of medical certainty, plaintiff’s fistulae formation was not the result of defendant’s negligence, but was instead a possible, albeit uncommon, complication of a hysterectomy.

Plaintiff moved for a directed verdict on the res ipsa loquitur count, and defendant moved for a directed verdict on both counts. The trial court denied both motions and instructed the jury only on count I (specific negligence) for the reason that plaintiff did not tender any instructions on the res ipsa loquitur count. The jury returned a verdict for the defendant, and the court denied plaintiff’s motion for judgment non obstante verdicto and/or a new trial.

Plaintiff now appeals, raising only the question of defendant’s negligence during the hysterectomy.

I

Plaintiff first assigns as error the trial court’s denial of her objection to Dr. Zbaraz’s testimony wherein he opined that plaintiff’s fistulae may have been caused by the tearing of minute and obstructed adhesions which defendant could not have seen while performing the surgery. She asserts that since defendant testified that he observed no adhesions during the operation, and no other evidence in the record suggests that she had adhesions, Dr. Zbaraz’s testimony was unduly speculative and thus should have been excluded. We disagree.

Although it is true that an expert witness may not guess, surmise or .conjecture as to a possible cause for an injury based on matters which are not based on the evidence (Dyback v. Weber (1986), 114 Ill. 2d 232, 244, 500 N.E.2d 8, 13; Baird v. Adeli (1991), 214 Ill. App. 3d 47, 65, 573 N.E.2d 279, 290, appeal denied (1991), 141 Ill. 2d 536, 580 N.E.2d 108), the testimony of a medical expert need not be based on absolute certainty, but only upon a reasonable degree of medical and scientific certainty. (Dabros v. Wang (1993), 243 Ill. App. 3d 259, 265; Hunter v. Chicago & North Western Transportation Co. (1990), 200 Ill. App. 3d 458, 473, 558 N.E.2d 216, 226; Frankenthal v. Grand Trunk Western R.R. Co. (1983), 120 Ill. App. 3d 409, 419, 458 N.E.2d 530, 538.) Furthermore, an expert witness may properly testify in terms of probabilities and possibilities based on facts assumed from the evidence. (Rodrian v. Seiber (1990), 194 Ill. App. 3d 504, 507, 551 N.E.2d 772, 774.) Our supreme court has explained:

“A physician as an expert witness is called upon to assume the facts, taken from the evidence, as true and to give an opinion on such facts. He may testify to ‘what might’ have caused a death or injury, despite any objection that his testimony is inconclusive and speculative. The testimony is but the opinion of the witness given on facts assumed to be true. It is for the trier of fact to determine the facts.” Beloit Foundry v. Industrial Comm’n (1976), 62 Ill. 2d 535, 539, 343 N.E.2d 504, 506.

Accord Norman v. American National Fire Insurance Co. (1990), 198 Ill. App. 3d 269, 299, 535 N.E.2d 1087,1095.

Furthermore, with respect to the amount of evidence necessary to support an expert’s opinion, our supreme court has stated that where an expert is asked a hypothetical question based on certain assumptions, “[a]s long as the hypothetical assumptions are within the realm of circumstantial or direct evidence, as supported by the facts or reasonable inferences, the question is permissible.” (Guardian Electric Manufacturing Co. v. Industrial Comm’n (1973), 53 Ill. 2d 530, 535, 293 N.E.2d 590, 594.) Moreover, the facts suggested in hypothetical questions need not be undisputed but only supported by the record (Harris v. Day (1983), 115 Ill. App. 3d 762, 771, 451 N.E.2d 262, 267), and “[i]n presenting evidence by a hypothetical question, counsel propounding the question has a right to ask it, assuming only the facts as he perceives them to be shown by the evidence” (Johns-Manville Products Corp. v. Industrial Comm’n (1979), 78 Ill. 2d 171, 180, 399 N.E.2d 606, 611); opposing counsel may then challenge the controverted facts by presenting his own hypothetical questions to the witness on cross-examination. (Hebeler v. Industrial Comm’n (1991), 207 Ill. App. 3d 391, 395, 565 N.E.2d 1035, 1037.) Finally, the admissibility of expert testimony is left to the sound discretion of the trial court, and its determination will not be disturbed absent an abuse thereof. Carlson v. City Construction Co. (1992), 239 Ill. App. 3d 211, 239, 606 N.E.2d 400, 417, appeal denied (1993), 148 Ill. 2d 640.

We find that there was sufficient evidence in the record to support Dr. Zbaraz’s opinion that plaintiff had tiny adhesions in her abdominal area which were the likely cause of plaintiff’s injuries. First, defendant testified that there was “an abnormal attachment” between plaintiff’s uterus and sigmoid colon, and Dr. Zbaraz could have reasonably inferred that those “attachments” were in fact adhesions. Second, plaintiff’s medical history indicated that she was suspected of having PID, a condition known to cause adhesions. Finally, the fact that fecal material was not discovered in plaintiff’s vagina and incision site until several days after the operation, indicating that her bowel was functioning properly, was evidence that adhesions, and not a misplaced suture or clamp, caused a slow erosion of plaintiff’s bowel wall.

Plaintiff nevertheless repeatedly asserts that Dr. Zbaraz’s opinion testimony cannot be admissible because defendant admitted that his post-operative report does not indicate that he encountered any adhesions during surgery. She fails to apprehend, however, that Dr. Zbaraz testified that the adhesions could have been so small and so obstructed by the uterus that defendant could not have perceived them while he was performing the operation. Although plaintiff obviously believes that Dr. Zbaraz’s “adhesion theory” is specious, it was still a question of credibility — a matter for her to address during cross-examination and closing argument.

The facts in the case on which plaintiff relies heavily, Coffey v. Brodsky (1987), 165 Ill. App. 3d 14, 518 N.E.2d 638, appeal denied (1988), 119 Ill. 2d 554, 522 N.E.2d 1242, are easily distinguishable from the facts sub judice. In Coffey, the evidence presented by the plaintiff, including an admission by the defendant doctor, showed that she was injured during an abdominal hysterectomy because the defendant placed a suture in the wrong place which blocked her urinary tract. (Coffey, 165 Ill. App. 3d at 18-19, 518 N.E.2d at 640.) The defendant presented an expert who opined that the plaintiff’s injury may have been caused not by the misplaced stitch, but instead by an inflammatory process which may have thickened the peritoneum of her ureter, thus lessening that organ’s pliability. (Coffey, 165 Ill. App. 3d at 19, 518 N.E.2d at 641.) We held that the defense expert’s testimony should have been excluded because there was nothing in the record reflecting that the plaintiff had a thickening of the peritoneum, especially since the post-operative report was silent regarding such a condition. Coffey, 165 Ill. App. 3d at 25, 518 N.E.2d at 644-45.

The difference between the factual situation here and the one presented in Coffey is that here, as stated above, Dr. Zbaraz testified that if his theory of what happened is taken as true, defendant could not have noticed the adhesions while operating on plaintiff; thus, the fact that no mention is made of adhesions in defendant’s post-operative report is perfectly consistent with Dr. Zbaraz’s theory. In Coffey, however, the defense expert did not state or imply that defendant would not have observed a thickening of the peritoneum had it existed and been a factor in the operation; consequently, the lack of such a notation in his post-operative report was totally inconsistent with the presence of that thickening during surgery. Accordingly, the decision in Coffey does not require us to reverse the judgment in this case.

Plaintiff’s final argument as to Dr. Zbaraz’s testimony is that it should have been excluded because it was contrary to defendant’s judicial admission that plaintiff had no adhesions in her abdominal area at the time of the surgery, (See Lowe v. Kang (1988), 167 Ill. App. 3d 772, 776, 521 N.E.2d 1245.) Plaintiff’s argument misses the mark. We repeat, at the risk of seeming to be didactic: defendant did not testify that plaintiff did not have any adhesions; he stated that he did not observe any during the procedure. This is entirely consistent with Dr. Zbaraz’s testimony that there may have been adhesions which caused plaintiff’s injuries which defendant could not have seen during the operation. Thus, defendant made no judicial admission which rendered the defense expert’s testimony inadmissible.

Accordingly, we hold that the trial court did not abuse its discretion in permitting Dr. Zabraz to opine that plaintiff’s injuries were most probably caused by the tearing of small adhesions.

II

Defendant next contends that the trial court erred in denying her post-trial motion for a judgment n.o.v or, in the alternative, for a new trial. It is well established that a trial court should enter a judgment n.o.v. only if all of the evidence, viewed in. the light most favorable to the nonmoving party, so overwhelmingly favors the moving party that no contrary verdict could stand (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14), and that standard also governs a reviewing court’s consideration of a trial court’s denial of a judgment n.o.v. Knight v. Haydary (1992), 223 Ill. App. 3d 564, 569, 585 N.E.2d 243, 247, appeal denied (1992), 145 Ill. 2d 635, 596 N.E.2d 629.

Our supreme court also emphasized in Pedriek that a different standard of review is applied to a motion for a new trial. (Pedriek, 37 Ill. 2d at 509-10, 229 N.E.2d at 513; accord Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310, 356 N.E.2d 32, 35-36.) A court should set aside a jury verdict and grant a new trial only where the verdict is contrary to the manifest weight of the evidence. (Pedrick, 37 Ill. 2d at 509, 229 N.E.2d at 513; Mizowek, 64 Ill. 2d at 310, 356 N.E.2d at 36.) A verdict will be deemed to be against the manifest weight of the evidence only if it is palpably erroneous and wholly unwarranted, clearly the result of passion or prejudice, or appears to be arbitrary, unreasonable, and not based on the evidence. Loitz v. Remington Arms Co. (1988), 177 Ill. App. 3d 1034, 1050, 532 N.E.2d 1091, 1101, rev’d on other grounds (1990), 138 Ill. 2d 404, 563 N.E.2d 397.

We recently had occasion to summarize the nature of our review when faced with a request to set aside a jury verdict in a medical malpractice case:

“[T]he well-established principle [is] that where conflicting expert testimony is introduced at trial, it is the province of the jury as the trier of fact to resolve the conflict. [Citations.] Although this court is required to scrutinize the evidence in a medical malpractice action when reviewing a *** motion for a judgment n.o.v. or a new trial [citations], we will not sit as a second jury and reweigh the evidence or reevaluate the credibility of the witnesses. [Citations.]” Dabros, 243 Ill. App. 3d at 264.

The case at bar presents a classic example of what has become by this time the ubiquitous “battle of the experts.” (See Martin v. Zueker (1985), 133 Ill. App. 3d 982, 991, 479 N.E.2d 1000, 1006.) After defendant testified to his actions during and after the hysterectomy, plaintiff called an expert witness to explain to a reasonable degree of medical certainty why he felt that defendant’s conduct deviated from the standard of care. Defendant then presented his medical expert, who opined to the same degree of certainty why defendant’s performance during and after the operation did not amount to breach of the standard of care. The jury heard all of this testimony as well as argument of counsel and resolved the conflict in favor of defendant; we therefore find no discernible reason to disturb that resolution and set aside the verdict.

III

Plaintiffs third assignment of error is that the trial court erred' in failing to grant a directed verdict in her favor on the res ipsa loquitur count of her complaint.

Our supreme court expounded on the nature of the res ipsa loquitur doctrine in Imig v. Beck (1986), 115 Ill. 2d 18, 503 N.E.2d 324, where it explained:

“[R]es ipsa loquitur *** raises an inference of negligence from otherwise inexplicable facts and circumstances by allowing proof of general negligence through circumstantial evidence. [Citations.] To raise the factual inference of negligence, the plaintiff must demonstrate (1) that the agency or instrumentality causing personal injury or property damage was, at the time of the creation of the condition causing the injury or damage, under the management or control of the party charged with negligence and (2) that the accident occurred under such circumstances that in the ordinary course of events it would not have occurred if the party so charged had used proper care while the agency or instrumentality was under its management or control. [Citations.] When both elements are shown, ‘the [occurrence] itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from want of proper care.’ [Citation.]
The application of the doctrine in a given case is a question of law which must be decided in the first instance by the trial court. [Citations.] Once that decision is made, it becomes the function of the trier of fact to weigh the strength of the inference of general negligence. [Citation.] The inference may be strong, requiring substantial proof to overcome it, or it may be weak, requiring little or no evidence to refute it. The weight or strength of such inference will necessarily depend on the particular facts and circumstances of each case and is normally a question of fact to be determined by the jury. [Citations.]
The use of res ipsa loquitur, however, does not relieve the plaintiff of the burden of proving negligence by a preponderance of the evidence. That burden of proof never shifts to the defendant, except in the very limited sense that if the defendant offers no evidence to overcome the prima facie case made by plaintiff in reliance on the doctrine, he runs the risk that the jury may find against him. [Citations.] Moreover, this inference of negligence does not vanish or disappear entirely upon introduction of contrary evidence by the defendant. The defendant’s direct evidence will be considered with all of the other evidence in the case, including the inference drawn from the circumstances of the occurrence. [Citations.]” (Emphasis in original.) Imig, 115 Ill. 2d at 26-28, 503 N.E.2d at 328-29.

We find that the trial court properly denied plaintiff’s motion for a directed verdict on the issue of res ipsa loquitur. In determining whether to grant a directed verdict, the trial court is to apply the Pedriek standard, i.e., only when the evidence, viewed in the light most favorable to the nonmoving party, so overwhelmingly favors the moving party that no contrary verdict could ever stand. Pedrick, 37 Ill. 2d at 510, 229 N.E.2d at 513-14.

As stated in Imig, res ipsa loquitur, when properly established, raises a permissive, not a mandatory, inference that plaintiff’s injury arose from defendant’s negligent conduct. (Imig, 115 Ill. 2d at 28-29, 503 N.E.2d at 329.) Accordingly, “in most cases [where res ipsa loquitur is applicable] a directed verdict for the plaintiff will not be appropriate, even where the defendant presents no explanation or rebuttal, because it must be left to the jury whether to draw the inference of negligence from the circumstances of the occurrence.” (Imig, 115 Ill. 2d at 29, 503 N.E.2d at 329.) In the case at bar, we find that the court properly denied plaintiff’s motion for a directed verdict because defendant presented evidence which, when looked at in the aspect most favorable to him, established that he did not breach the applicable standard of care when he performed the hysterectomy on plaintiff. As discussed previously, Dr. Zbaraz hypothesized that it was most probable that defendant could not have avoided tearing invisible minute adhesions from parts of plaintiff’s bowel wall, causing it to deteriorate over a period of a few days. In light of this evidence, we hold that the trial court properly denied plaintiff’s motion for a directed verdict.

IV

Finally, plaintiff asserts that the trial court erred in failing to instruct the jury on the doctrine of res ipsa loquitur. Defendant responds that she has waived the right to such an instruction by neglecting to tender an instruction on that issue to the trial court. (134 Ill. 2d R. 366(b)(2)(i) (“No party may raise on appeal the failure to give an instruction unless he shall have tendered it”); Auton v. Logan Landfill, Inc. (1984), 105 Ill. 2d 537, 549, 475 N.E.2d 817, 821 (“A plaintiff cannot take the position on appeal that a case should have been presented to the jury with different instructions than those which were given unless at trial he tendered instructions which set forth the statement of the law he contends, on appeal, would have been the proper one”).) Plaintiff admits that she failed to tender a res ipsa loquitur instruction to the court; however, she argues that since the court denied her motion for a directed verdict on that issue, there was. no need to tender an instruction because the court had already ruled, as required by section 2—1113 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1113), that the doctrine was inapplicable.

Plaintiff’s argument is misplaced. While she is correct that the question of whether res ipsa loquitur is applicable in a particular case is initially a question of law for the court to decide (Ill. Rev. Stat. 1989, ch. 110, par. 2—1113; Imig, 115 Ill. 2d at 27, 503 N.E.2d at 329), the fact that the court denied her motion for a directed verdict on that issue cannot in any sense be equated with a finding that the doctrine of res ipsa loquitur was altogether inapplicable to the case. Obviously, the denial of plaintiff’s directed verdict motion meant simply that she was not entitled to a judgment in her favor as a matter of law on the res ipsa loquitur count; it certainly did not mean that the court had found that the doctrine was inapplicable and was not to be submitted to the jury. Accordingly, plaintiff’s subsequent failure to tender an instruction on that count removed from the jury the question of whether she had established the elements of the doctrine such that the court would have been required to submit to the jury both the permissive inference of negligence and the contrary evidence offered by defendant. (Imig, 115 Ill. 2d at 26-27, 503 N.E.2d at 328-29.) Accordingly, we find that plaintiff waived her right to have the jury instructed on the res ipsa loquitur count.

For all of the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

HARTMAN and DiVITO, JJ., concur.

       The evidence also established that plaintiff earlier had complained to a nurse of a small vaginal discharge on February 28.

       The relevant instruction offered to the jury states as follows:
      “The plaintiff claims that she was injured and sustained damage, and that the defendant was negligent in one or more of the following respects:
      1. applied clamp(s) and or used scalpel or used scissors or placed sutures in such a manner as to cause retrovaginal and sigmoid colon vaginal injuries while performing plaintiff’s hysterectomy.
      2. damaged the sigmoid colon and rectum and failed to inspect, recognize and repair these injuries while performing plaintiff’s hysterectomy.
      3. caused devaseularization damage to the tissues and failed to inspect, recognize and repair these injuries while performing plaintiff's hysterectomy.
      4. failed to diagnose a post-operative infection in a timely manner.
      5. failed to properly supervise plaintiff’s post-operative treatment.”

       The court did note that a directed verdict for the plaintiff might be appropriate in some extremely unusual cases, such as “the human toe in the plug of chewing tobacco, the collision of railway trains trying to run on the same track, and perhaps a rear end collision with a stationary vehicle.” Imig, 115 Ill. 2d at 29, 503 N.E.2d at 329-30.

       Section 2 — 1113 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1113) provides:
      “In all cases of alleged medical or dental malpractice, where the plaintiff relies upon the doctrine of res ipsa loquitur, the court shall determine whether that doctrine applies. In making that determination, the court shall rely upon either the common knowledge of laymen, if it determines that to be adequate, or upon expert medical testimony, that the medical result complained of would not have ordinarily occurred in the absence of negligence on the part of the defendant. Proof of an unusual, unexpected or untoward medical result which ordinarily does not occur in the absence of negligence will suffice in the application of the doctrine.”

       Although it may be possible, as plaintiff urges, that when the court denied her motion for a directed verdict, it also stated that the doctrine was not applicable at all and therefore would not submit that issue to the jury, the argument which took place regarding the directed verdict motions made by both parties was not made part of the record; therefore, we must presume that the court simply denied both parties’ motions for a directed verdict for proper reasons. Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958.