author: PRESIDING JUSTICE GORDON

text:
    MANUEL CALDERON, Plaintiff-Appellant, v. ECHO, INC., Defendant-Appellee.
    First District (5th Division)
    No. 1 — 90—2515
    Opinion filed March 19, 1993.
    Thomas R. Cirignani & Associates, of Chicago (James C. Harman, of counsel), for appellant.

      Lord, Bissell & Brook, of Chicago (R. Bruce Duffield and Hugh C. Griffin, of counsel), and Eugene V. Stahnke, of Echo, Inc., of Lake Zurich, for appellee.
   PRESIDING JUSTICE GORDON

delivered the opinion of the court:

Plaintiff filed this products liability action after being struck in the eye by a flying object while operating a trimmer manufactured by defendant. In his complaint, plaintiff alleged that the safety shield on the trimmer was not adequate to protect the operator against objects thrown back at the operator and that defendant had failed to warn of the lack of protection offered by the safety shield. A jury awarded plaintiff, who lost use of his right eye in the accident, $253,742.70 in damages, but reduced the award 90% finding that plaintiffs failure to wear eye protection when operating the trimmer constituted an assumption of the risk. Plaintiff appeals contending that the jury’s finding that he assumed the risk is against the manifest weight of the evidence.

Facts

Plaintiff was injured on September 21, 1982, while working as a landscaper. He was operating the Echo Trimmer-Brushcutter, SRM 200AE (trimmer) when he was struck in his right eye by an object propelled by the trimmer. Plaintiff filed a products liability action against the trimmer’s manufacturer, Echo, Inc. (Echo), alleging that the weed trimmer was in an unreasonably dangerous condition when put in the stream of commerce because its safety shield was inadequate to protect the user from flying objects, lacked proper warnings on the device itself, and used a material in manufacturing that chipped and cracked easily. Defendant Echo subsequently filed a third-party complaint against plaintiff’s employer, A.R.T. Fleet Service (Fleet), seeking indemnification or, in the alternative, contribution based on Fleet’s alleged failure to properly instruct plaintiff on the use of the trimmer.

In its answer, Echo raised the affirmative defense that plaintiff’s injuries were caused, in whole or in part, by the comparative fault of plaintiff in that he failed to wear eye protection when using the trimmer. A jury trial was held. The trial testimony relevant to this appeal is set forth below.

Plaintiff called Richard VerHalen as an expert witness. Among other things, VerHalen testified that the trimmer’s operator's manual was extremely confusing and did not explain the nature and magnitude of the equipment and the potential dangers in its use. He stated that although the operator’s manual explicitly states that eye protecting glasses should be worn whenever the unit was operated, the warning was not sufficiently emphasized. He also stated that the shield was inadequate and gave the user a false sense of security. On cross-examination, he conceded that the instruction to wear eye protection was on the first page of the operator’s manual and that the trimmer itself contained a caution sticker on the bottom of the handle which says “Always wear eye protection.”

Plaintiff Manuel Calderon testified that he was born in Mexico. He stated that he had a sixth-grade education in Mexico and came to the United States in 1968 when he was 20 years old. Plaintiff testified that his first job in this country was at a tree nursery where he worked for approximately seven years, planting trees and bushes. He then worked at a nut manufacturer for approximately nine years.

Plaintiff stated that he went to work for A.R.T. Fleet, a landscaping service, in 1981. He stated that on September 21, 1982, he was cutting grass in a 7- to 11-foot ditch. He was using the Echo trimmer equipped with a steel blade which he used about once a week to cut big weeds or tall grass. He stated that he had never used a trimmer prior to working for Fleet in 1981 and that a Fleet foreman, Charles Butterfield, taught him its use. He stated that Butterfield did not teach or tell him to use any special equipment when operating the cutter.

He testified that he was using the trimmer in the ditch when he got something in his eye. Butterfield, who was working close by, came over and asked what was wrong and plaintiff told him. Plaintiff denied that he told Butterfield at this time that he forgot to wear his glasses. Plaintiff said that at the time of the accident he was not wearing any safety glasses, that he did not own any safety glasses, and that he did not recognize those safety glasses which were offered as an exhibit at trial. He said that his co-workers did not use eye protection when operating the trimmer and that he had never worn safety glasses when using the trimmer in the two years he worked for Fleet. He wore sunglasses when he started to work for the tree service, but stopped wearing them because it was hot. He stated that no one from Fleet ever provided him with eye protection and that he was never told to wear eye protection when he worked.

Plaintiff testified that he did not know prior to his injury that the safety shield would not protect him from an eye injury; he thought it was to keep pieces of debris from flying backwards at him. He said that he never saw an operator’s manual for the trimmer and that he could not read English at the time of the accident. He never saw the caution labels, indicating that when the machine was used, the area where the labels were located would become oily and covered with grass.

On cross-examination, plaintiff stated that the trimmer would throw out cut grass at about knee level on both sides of the cutter and that the only time he was injured using the machine was when he lost his eye. He admitted that prior to his employment at Fleet, he operated a machine for the nut manufacturer and that he wore safety glasses provided by his employer when operating this machine. He acknowledged that he used the trimmer between 14 and 20 times prior to the accident.

Plaintiff then called Lee Sancken, the head of Fleet, pursuant to section 2 — 1101 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1101.) Sancken admitted that there was no policy that employees read an operator’s manual before using the trimmer, but stated that he instructed plaintiff on how to use the trimmer. Sancken conceded that he did not make sure employees wore their safety glasses, but stated that he did check from time to time to see whether the employees were wearing eye protection. Sancken admitted that when he used the trimmers, he wore no specific equipment, just his regular glasses. He stated that he bought goggles and safety glasses for the men and gave each person a pair and that any lost pairs were replaced immediately. He also testified that the cutter had a label instructing eye protection be worn and that while there might be some dirt on the handle of the trimmer, the handle would not be covered with grease and oil.

On cross-examination, Sancken asserted that he had at least 24 pairs of safety glasses or goggles which were kept in tool boxes, the shop and in the trucks. He also said that the foremen were required to make sure the workers were wearing eye protection and that all of his employees wore eye protection when operating the trimmer. He purchased proper eye protection especially for the trimmers after reading the operator’s manual, which stated that such protection should be worn.

Sancken testified he saw the plaintiff operating the trimmer and using eye protection on many occasions and that the one time he saw plaintiff using the trimmer without eye protection, he stopped plaintiff and told him to put on his safety glasses. Sancken stated that he would hold discussions with plaintiff in English and that he thought plaintiff could read English because he gave him written instructions which plaintiff would then perform.

Defendant Echo’s first witness was Charles Butterfield, who testified that on the date of the accident he was a crew foreman for Fleet. Butterfield said that he had trained plaintiff how to use the trimmer and that the first thing he discussed with plaintiff was eye protection, telling him that every time the trimmer was used plaintiff had to wear eye protection. Butterfield observed plaintiff use the machine after training, and noted that plaintiff, who used either safety glasses or goggles most of the time, wore them all the time when he used the trimmer, According to Butterfield, plaintiff never refused to wear eye protection and all of the employees always used eye protection when operating the trimmer. He testified that plaintiff did not give him any indication that he did not understand his directions and said that he and plaintiff spoke to each other in English.

Butterfield reminded everyone on the day before the accident to wear their safety glasses because the next day’s job involved uneven surfaces. Butterfield stated that after taking plaintiff to the hospital, he asked him how the accident happened; plaintiff responded that he was not wearing any eye protection because he had forgotten his safety glasses. According to Butterfield, there were spare pairs of safety glasses available at the jobsite.

On cross-examination, Butterfield said that every man was given safety glasses on the night before the accident for his use the next day. He acknowledged that it was strange that plaintiff did not get an extra pair of glasses from the truck when he realized he had forgotten his pair. On redirect, Butterfield stated that the night before the accident plaintiff took his pair of safety glasses and placed them on a shelf in the equipment shed, stating that they were his the next day.

Eugene Stahnke was called to testify and stated that Echo included warnings that eye protection should be worn when operating the trimmer on the product and in the operator’s manual.

After Echo rested, third-party defendant Fleet called Barney Miller, one of plaintiff’s co-workers, to testify. Miller stated he worked for Fleet in the summer of 1982 and that when he was trained to use the trimmer he was told to wear eye protection. According to Miller, Fleet had a policy requiring eye protection be worn and that such protection was always provided for them, available in either the trucks or in the shop. Miller also said that in the spring of 1982 there was a shop meeting where all the workers were reminded about basic maintenance and the need to wear eye protection. Miller testified that he wore eye protection whenever he used the trimmer and that every time he saw plaintiff using the trimmer, plaintiff was using eye protection.

The jury found in plaintiff's favor and assessed his total damages at $253,742.70. The jury determined that the percentage of fault attributable solely to plaintiff’s assumption of the risk was 90%. After making the appropriate reduction based upon plaintiff’s comparative fault, the jury determined that plaintiff’s recoverable damages were $25,374.27. The jury found in favor of third-party defendant Fleet on Echo’s claim. After the denial of his post-trial motion, plaintiff appeals arguing that the jury’s determination that plaintiff assumed the risk is against the manifest weight of the evidence.

Opinion

The sole issue raised by plaintiff in this appeal is whether the jury’s finding that plaintiff assumed the risk was against the manifest weight of the evidence. It is well established that it is the jury’s function to determine the preponderance of the evidence and its determination will only be reversed when it is against .the manifest weight of the evidence. (Lawson v. G.D. Searle & Co. (1976), 64 Ill. 2d 543, 356 N.E.2d 779.) A verdict is against the manifest weight of the evidence only where the opposite conclusion is clearly evident or the jury’s verdict was palpably erroneous. (Fakhoury v. Vapor Corp. (1991), 218 Ill. App. 3d 20, 578 N.E.2d 121.) Plaintiff argues that he “can meet this extremely high standard.” We disagree.

Assumption of risk occurs when a user or consumer “voluntarily and unreasonably proceed[s] to encounter a known danger ***. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.” Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 423, 261 N.E.2d 305.

In Williams v. Brown Manufacturing Co., 45 Ill. 2d 418, 261 N.E.2d 305, the Illinois Supreme Court established the test to be applied in determining whether a user has assumed the risk. The court stated that it “is fundamentally a subjective test, in the sense that it is his knowledge, understanding and appreciation of the danger which must be assessed, rather than that of the reasonably prudent person.” (Emphasis in original.) (Williams, 45 Ill. 2d at 430.) Although a subjective test, the determination of whether the plaintiff assumed the risk “is not to be made solely on the basis of the user’s own statements but rather upon the jury’s assessment of all of the facts established by the evidence.” (Williams, 45 Ill. 2d at 430.) The striking down of the jury’s verdict is “predicated upon consideration of the totality of the evidence in its aspect most favorable to defendant.” Williams, 45 Ill. 2d at 431.

Plaintiff urges that the assumption of risk question must focus upon the specific risk posed by the particular defect in the product, i.e., the inadequacy of the safety shield, rather than the general danger that accompanies the use of the product. In this vein, plaintiff argues that it is irrelevant that he was cognizant of a general risk of injury in operating the trimmer, rather the evidence must show that he must have been cognizant of the specific risk of injury posed by the defect in the product prior to his injury.

Plaintiff is correct in asserting that the assumption of risk “is a bar to recovery only if the plaintiff is aware of the product defect and voluntarily proceeds in disregard of the known danger.” (Court v. Grzelinski (1978), 72 Ill. 2d 141, 149, 379 N.E.2d 281; see also Kinka v. Harley-Davidson Motor Co. (1976), 36 Ill. App. 3d 752, 758, 344 N.E.2d 655 (“existence of plaintiff’s knowledge of the defect which made the product unreasonably dangerous would seem an essential element of proof of the defense of assumed risk”).) Even if the plaintiff’s occupation involves certain general risks of injury, for assumption of risk to preclude recovery, plaintiff must be aware of the defect in the product and of the specific risk posed by that product. (Court, 72 Ill. 2d at 149; see also Cavazos v. E.W. Bliss Co. (1979), 75 Ill. App. 3d 453, 394 N.E.2d 438 (holding reversible error committed in a products liability action when jury was instructed to consider dangers ordinarily accompanying plaintiff’s work in assessing whether plaintiff assumed the risk).) Otherwise, “[i]n situations where the nature of plaintiff’s employment requires exposure to certain hazards, it would be a non sequitur of the policy considerations of strict tort liability to say that plaintiff has voluntarily and unreasonably assumed such hazards by the mere acceptance of his employment.” Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971, 990, 326 N.E.2d 74; see also Coty v. U.S. Slicing Machine Co. (1978), 58 Ill. App. 3d 237, 246, 373 N.E.2d 1371 (trial judge properly rejected defendant manufacturer’s argument that 15-year-old deli worker assumed the risk because she knew the inherent danger of the slicer in question when there was no evidence presented from which the jury could infer that plaintiff “made a considered choice to encounter the danger” posed by the slicer).

In support of his position that the jury’s verdict is against the manifest weight of the evidence, plaintiff points to his own testimony that he believed he was in no danger because there was a safety shield at the base of the trimmer which was sufficient to protect him. In essence, plaintiff argues that the jury verdict cannot stand because no one directly refuted his testimony that he was unaware of the inadequacy of the shield.

While the appropriate test is a subjective one, the plaintiff’s testimony as to his own state of knowledge by no means precludes a jury from considering other evidence from which plaintiff’s subjective state can be inferred. As the court in Williams stated:

“No juror is compelled by the subjective nature of this test to accept a user’s testimony that he was unaware of the danger, if, in the light of all of the evidence, he could not have been unaware of the hazard [citation]; and the factors of the user’s age, experience, knowledge and understanding, as well as the obviousness of the defect and the danger it poses, [citations] will all be relevant to the jury’s determination of the issue, if raised.” Williams, 45 Ill. 2d at 430-31.

We note at this juncture that we need not presume that the jury gave credence to plaintiff’s testimony Plaintiff’s testimony that he had never been told to wear eye protection, had never worn such eye protection, and had never seen any other employees wear such eye protection was in direct contravention to the testimony of three other witnesses. Of these three witnesses, the jury could have easily given greater weight to the testimony of Butterfield and Miller, both disinterested witnesses who had not had any contact with Fleet or its owners for a considerable period of time prior to the trial. In light of the diametrically opposed testimony offered by the witnesses, the jury could have refused to believe the plaintiff’s potentially self-serving testimony that he was unaware of the defect and of the resulting danger that was posed by the trimmer.

Contrary to plaintiff’s assertions, direct evidence rebutting plaintiff’s allegations of ignorance is not necessary to uphold a jury’s verdict that plaintiff assumed the risk. Rather, it is within the province of the jury to determine the issue of assumption of risk by inference from evidence that is circumstantial. Cleveringa v. J.I. Case Co. (1992), 230 Ill. App. 3d 831, 595 N.E.2d 1193; see also Williams, 45 Ill. 2d at 430-31.

In this case, there was sufficient evidence presented from which a jury could infer that plaintiff assumed the risk with respect to the safety shield by failing to wear.eye protection. First, plaintiff admittedly used a trimmer on 14 to 20 prior occasions, allowing an inference that he was familiar with its discharge characteristics. Second, and perhaps most overridingly, defendant offered substantial testimony that plaintiff was instructed a number of times that safety glasses were to be worn when this particular weed trimmer was to be used. There was testimony that plaintiff was instructed to wear eye protection in 1981 when he started to work for Fleet, at the beginning of the 1982 season, and on one other occasion when plaintiff was observed operating the trimmer without eye protection.

In addition to the evidence of instruction, there was testimony that all the workers at Fleet with the exception of Sancken used safety glasses whenever operating the trimmer. Moreover, there was testimony by Miller that every time plaintiff operated the trimmer, plaintiff was using eye protection. Furthermore, the trimmer itself contained a label which recited the importance of wearing eye protection and that information was contained in the operator’s manual as well.

The jury could have easily inferred that plaintiff recognized the risk of a defective shield from the emphasized need to wear safety glasses. It is readily apparent that safety glasses are intended to protect the user’s eyes from flying objects. Consequently, the jury was free to conclude that the directive that these glasses be worn when operating the trimmer would have alerted plaintiff to the potential danger arising from the inadequate shield. Cf. Martinet v. International Harvester Co. (1977), 53 Ill. App. 3d 213, 225, 368 N.E.2d 496 (jury verdict that plaintiff assumed the risk was not against the manifest weight of the evidence when evidence presented showed that plaintiff was injured when he left transmission of bulldozer in gear when attempting to mount the bulldozer; “it is a matter of common knowledge that a man standing on a metal track of a bulldozer, with the motor running and the transmission left in gear, will be in a position of danger if the clutch is bumped so that the track begins to move”).

Although plaintiff has a limited educational background and claimed he could not read English at the time of the accident, the jury was in the best position to assess the plaintiff’s capabilities and judge whether plaintiff, who had one year of experience working as a landscaper, was capable of making the inference that the shield was not adequate to prevent eye injury by itself. (See Lundy v. Whiting Corp. (1981), 93 Ill. App. 3d 244, 417 N.E.2d 154 (trial court erred in directing verdict in plaintiff’s favor when there was sufficient evidence from which the jury could infer that plaintiff assumed the risk, including, (1) plaintiff had operated the machinery in question for 18 months and could have been aware of its defect, (2) plaintiff should have been familiar with operator’s practice of not sounding the siren with every crane movement, and (3) place where plaintiff was standing at the time of the accident was one from which plaintiffs potential awareness of a problem with the product could have been inferred).) Therefore, based upon plaintiff’s extensive experience in working with a trimmer, his instruction in the use of safety glasses and his repeated use of such glasses, and the obvious connection between the need to wear safety glasses and the underlying danger of flying objects notwithstanding the presence of the safety shield, we conclude that the evidence was sufficient to allow the jury to infer that plaintiff knowingly appreciated the risk that the shield would not adequately protect his eyes from projectiles.

Plaintiff attempts to characterize all of defendants’ evidence as merely informing plaintiff of the “general danger” which existed if the trimmer was used without eye protection, rather than evidence that plaintiff knew of the specific danger. In this respect, plaintiff cites L.D. Brinkman & Co.-Midwest v. National Sponge Cushion Co. (1979), 76 Ill. App. 3d 683, 394 N.E.2d 1221, arguing that it supports his position that evidence demonstrating the general danger inherent in a product is not sufficient to prove that plaintiff assumed the specific risk resulting from the defect in the product.

In Brinkman, plaintiff used a welder near some carpet padding which he knew to be flammable, keeping a fire extinguisher at hand in case the padding caught fire. The Brinkman plaintiff was completely unaware, however, of the specific defects in the padding which included “extreme flammability,” the “rapid spread of the resulting fire” and the “inextinguishability of the flames.” (76 Ill. App. 3d at 692.) The court found the plaintiff’s actions in using the welder and keeping a fire extinguisher nearby did not evidence assumption of the risk and ruled that the trial court should have directed a verdict in plaintiff’s favor on this issue.

Unlike Brinkman, the actions tending to show that plaintiff here was aware of the general danger do not negate or conflict with a finding that plaintiff was aware of the specific risk. In Brinkman, plaintiff’s actions which showed an appreciation of the general risk also demonstrated his complete ignorance of the specific danger posed by the product. Clearly, plaintiff would not have positioned a fire extinguisher near him if he knew that the extinguisher was incapable of putting the fire out. In contradistinction, the evidence presented in this case is sufficient to establish plaintiff’s awareness of the general dangers and his inferential awareness of the particular defect. The general danger of injury from flying objects by its very nature must ultimately focus upon the insufficiency of the shield to protect against this risk. Consequently, while we agree with plaintiff that the evidence presented would inform plaintiff of the general danger or risk, it does not preclude the jury from concluding, as demonstrated earlier, that this same evidence also alerted plaintiff to the specific risk or danger involved. See Hackett v. Equipment Specialists, Inc. (1990), 201 Ill. App. 3d 186, 559 N.E.2d 752 (in addition to demonstrating that plaintiff could have possessed a “general awareness” to the alternatives to placing her hand near moving machinery, evidence could support a jury verdict that plaintiff assumed the risk by sticking her arm into the corn husker when such evidence demonstrated that plaintiff had been instructed never to try and unclog or place her hand in the machine and that she could have stopped the machine and that the machine would be stopped in one minute regardless of her actions).

Finally, plaintiff urges that the Illinois Supreme Court’s decision in Sweeney v. Max A.R. Matthews & Co. (1970), 46 Ill. 2d 64, 264 N.E.2d 170, directs that we find as a matter of law that plaintiff did not assume the risk. In Sweeney, plaintiff, a carpenter, was injured when using special purpose concrete nails manufactured by the defendant. When plaintiff hit the heads of the first several nails, they broke off and flew across the room. The fourth or fifth nail he struck shattered, injuring his eye. Plaintiff was not wearing eye protection at the time of the incident even though his employers instructed its carpenters to wear such protection when hammering concrete nails.

The result in Sweeney is not inconsistent with the defendant’s position in this case. In Sweeney, the jury returned a verdict for plaintiff whereas here the jury’s verdict was for the defendant. Based upon the evidence in Sweeney, there is no reason to presume that the jury’s determination in that case would require reversal if the jury had instead found for the defendant.

By the same token, nothing in our own decision would necessitate a reversal if the jury had found for plaintiff. Although the evidence favoring defendants is stronger than the facts in Sweeney, with respect to plaintiff’s age, experience in landscaping and use of the trimmer, and the extensive testimony establishing that he was aware of the need to wear safety glasses, the jury in this case could still have chosen to believe plaintiff’s testimony which disputed the foregoing facts and found in his favor, but it did not. In both Sweeney and the case at bar, the jury verdict was not against the manifest weight of the evidence and in either case there would have been enough evidence contrary to the given verdict to have sustained a contrary verdict as well. Accordingly, we find that the jury’s verdict that the plaintiff was 90% at fault because he assumed the risk is not against the manifest weight of the evidence.

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

Judgment affirmed.

McNULTY and COUSINS, JJ., concur.

      Justice Lorenz originally sat on the panel of this case. After he retired, Justice Cousins substituted on the panel, and he has read the briefs and listened to the tape of oral argument.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    ORLANDO CORYELL, d/b/a The Colour Shop, Plaintiff-Appellant, v. THE VILLAGE OF LA GRANGE, Defendant-Appellee.
    First District (5th Division)
    No. 1 — 92—1190
    Opinion filed March 19, 1993.

      Orlando Coryell, of La Grange, appellant pro se.

    Russell W. Hartigan and Keith A. Mandelski, both of Russell W. Hartigan & Associates, of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff Orlando Coryell (Coryell) appeals pro se from an order dated February 28, 1992, which dismissed three counts of his five-count second amended complaint against the Village of La Grange. Because we find that this court is without jurisdiction to hear the appeal, we dismiss.

According to the record that accompanied this appeal, the Village of La Grange (Village) held public meetings in April and May 1986 at which time the Village discussed its plan to set aside certain areas of the village as conservation and development areas pursuant to the Real Property Tax Increment Allocation Redevelopment Act (Ill. Rev. Stat. 1985, ch. 24, par. 11 — 74.4—1 et seq.). After conducting these public hearings, the Village enacted ordinances in accordance with its plan and then acquired three properties. In 1987 the Village acquired 302 and 304 West Burlington Avenue in La Grange, and in 1988, 306 West Burlington Avenue was acquired.

The buildings on these properties housed four businesses, three of which were operated by the owners of the properties. The fourth business was operated by Coryell, who leased space at 306 West Burlington. There he operated a retail store called “The Colour Shop,” where he sold upholstery fabric, paint and wall paper. Because of the Village’s development plan, all of the businesses had to vacate the buildings and relocate. In addition to being paid fair market value for their properties, each of the three business owners/property owners received reimbursement from the Village for relocation expenses they incurred. However, the Village refused to pay Coryell for the costs he incurred as a result of his relocating to another site within the Village of La Grange.

On July 24, 1991, Coryell filed pro se a second amended complaint in which he sought reimbursement from the Village of La Grange for his relocation expenses, including the increased costs he incurred for rent at the new location and the cost of advertising the move. In counts I and V of the complaint, plaintiff alleged that the Village’s statements at the public hearings constituted a contract to pay relocation costs and that the Village breached the contract, in count II Coryell alleged that an implied contract existed based upon the Village’s unjust enrichment, in count III Coryell alleged that the Village arbitrarily discriminated against him, and in count IV he alleged that he detrimentally relied upon representations made by the Village.

The Village moved to dismiss the complaint pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615), for failure to state a cause of action. On February 28, 1992, a hearing was held on the Village’s motion to dismiss. After hearing argument the trial court stated as follows:

“THE COURT: I think what I have to do is apply — in applying the facts in a 615 motion.
I’m going to grant it as unjust enrichment — kind of unjust enrichment against the Village. And I’m going to deny the motion on the constitutional argument because that’s always an issue in these other set of facts.
And I’ll give you the benefit of the 2 — 615—pleading as a relocation expenses [sic] because there’s a question of whether or not they’re discretionary, whether or not an ordinance is absolutely necessary in this set of facts; so I’ll give you the benefit of the court system.
The motion is granted in part, denied in part; transfer to Judge O’Connell for re-assignment to Judge Reid due to the ad damnum is less that [sic] 10,000-15,000.”

The court also directed that an order be drawn up. This was done, although it is unclear who drafted the order. The order, which was signed by the trial judge, states as follows:

“IT IS HEREBY ORDERED:
Defendant’s motion is granted with respect to Counts I, IV and V and said order is final and appealable.
Defendant’s motion as to Counts II and III is denied.
The matter is hereby transferred to Judge O’Connell in Room 2005 instanter, for purposes of reassignment due to Plaintiff’s complaint failing to meet the minimum required ad damnum.”

Plaintiff appeals from this order, alleging that it was error for the trial court to have dismissed counts I, IV and V of his second amended complaint. The Village responds, contending that the appeal must be dismissed for several reasons. First, the Village contends that the order entered is inconsistent with the court’s oral ruling bn the motion to dismiss. When reading the trial court’s oral ruling in conjunction with plaintiff’s complaint, the only count that was dismissed appears to be.count II, which was based upon unjust enrichment. However, the order indicates that count II still stands and that counts I, IV and V are dismissed. Disregarding this discrepancy, the Village also argues that the appeal must be dismissed because the order is nonfinal and nonappealable. The Village points out that the trial court did not dismiss any counts with prejudice and did not include Rule 304(a) language in the order. See 134 Ill. 2d R. 304(a).

"Before we may address the issues raised by plaintiff, we must consider the Village’s contention that we are without jurisdiction to hear this appeal. Contrary to plaintiff’s assertion, we do not have jurisdiction to hear this appeal pursuant to Supreme Court Rule 301. (134 Ill. 2d R. 301.) This appellate court has jurisdiction to entertain an appeal from a judgment which does not dispose of the entire proceeding only if the judgment order complies with the mandates of Supreme Court Rule 304(a). (Arachnid, Inc. v. Beall (1991), 210 Ill. App. 3d 1096, 569 N.E.2d 1273.) That rule states that “an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal.” (Emphasis added.) 134 Ill. 2d R. 304(a).

The order in this case, by its own terms, dismisses only three of the five counts brought by plaintiff. Therefore, before this court acquires jurisdiction it must be clear that the order appealed from is final and that the trial court has included the requisite written finding, making the order appealable pursuant to Supreme Court Rule 304(a). Coryell may wish to rely solely on the language in the order which indicates that “said order is final and appealable.” However, case law is replete with instances where this court has determined an order to be nonfinal and nonappealable despite the trial court’s statement to the contrary. Appealability of an order is determined by its substance rather than its form. (Boonstra v. City of Chicago (1991), 214 Ill. App. 3d 379, 574 N.E.2d 689.) Consequently, our inquiry is more extensive.

First of all, the order being appealed must contain an express finding by the trial court which transforms the otherwise nonappealable order into an appealable one. Recently, our Illinois Supreme Court addressed the question of what express written language was required pursuant to Rule 304(a) to make a final order as to less than all parties or claims appealable. (In re Application of Du Page County Collector (1992), 152 Ill. 2d 545, 605 N.E.2d 567.) In In re Application of Du Page County Collector, our supreme court held that “where appeal is sought pursuant to Rule 304(a) from a judgment which defeats a claim or is in the nature of a dismissal, the written finding is sufficient only if it refers to appealability.” 152 Ill. 2d at 551.

The written order in this case merely states that “said order is final and appealable.” No request was made at the hearing for a finding pursuant to Supreme Court Rule 304(a), no reference was made to Rule 304(a) in the order and the language tracking Rule 304(a) such as “no just reason for delaying” is not included in the order. Consequently, despite the more relaxed interpretation of the mandates of Rule 304(a) provided by the recent supreme court decision, we believe that the trial court’s reference to appealability in the dismissal order in this case is insufficient to satisfy the requirements of Rule 304(a).

However, even if we were to find that the order contained the necessary language, this determination would not resolve the issue of this court’s jurisdiction to hear the appeal. Just because an order contains the required language under Rule 304(a) does not make an otherwise nonfinal order appealable. (Arachnid, 210 Ill. App. 3d at 1103.) A judgment is final if it disposes of some definite or separate part of the controversy. (Susman v. Price (1992), 230 Ill. App. 3d 639, 594 N.E.2d 1332.) Consequently, we must next consider whether the order of dismissal is final.

Generally, the controlling factor in determining whether an order appealed from under Rule 304(a) is final is whether the bases for recovery under the counts that were dismissed are different from those under the counts left standing. (Arachnid, 210 Ill. App. 3d at 1103.) In this case it is difficult if not impossible to determine what causes of action were dismissed and which counts remain. This is because the judgment entered fails to conform to the trial court’s rulings at the hearing on the motion to dismiss.

As the Village of La Grange points out, regardless of the written judgment that was entered, a review of the transcript of the trial court’s hearing on the motion reveals that the court never actually ruled on counts I, IV and V. The court stated only that it was granting defendant’s motion as to the unjust enrichment claim (which appears to be count II of plaintiff’s complaint) and denying the motion as to the constitutional claim (which is count III of Cor-yell’s complaint). The trial court was silent as to its findings on counts I, IV and V, all of which are based upon some theory of breach of contract. Nevertheless, the judgment order entered indicates that counts I, IV and V are dismissed and counts II and III are not. This order directly contradicts the trial court’s verbal findings.

We think it would be unwise to ignore this discrepancy and rely solely upon the written order, thereby assuming that counts I, IV and V were dismissed by the trial court. First of all, absent any reference to these claims, there is no basis for reviewing the trial court’s ruling on these claims. Secondly, it is entirely possible that this discrepancy will resurface in the court below when Coryell attempts to pursue his claim under count II, which deals with unjust enrichment, and which it would appear was actually dismissed by the court below. Consequently, we find that the order at issue here, though it might appear to be a final order on its face, contains certain discrepancies which make it nonfinal. The inconsistency between the judgment entered and the trial court’s findings, besides robbing this court of jurisdiction, makes it impossible for us to consider the appeal.

We also note that the order did not dismiss the counts “with prejudice.” Although this omission need not be fatal and an order will not be deprived of finality because of this factor alone (see Boonstra v. City of Chicago (1991), 214 Ill. App. 3d 379, 385, 574 N.E.2d 689), we find nothing in the trial court’s ruling at the hearing which would indicate that the trial court intended the dismissal to be with prejudice or that plaintiff would not be free to resurrect whatever claims were dismissed by filing a third amended complaint. Although no request was made on record for leave to amend, there was also no request made for Rule 304(a) language. In fact, it would appear that the language “said order is final and appealable” was merely placed in the order by the drafter. Therefore, it is not clear from the record whether the trial court intended to invoke Rule 304(a) and preclude further amendment or not.

For all the reasons stated above, we dismiss the appeal for lack of jurisdiction. The cause is remanded to the trial court for further proceedings consistent with this opinion.

Dismissed and remanded.

McNULTY and COUSINS, JJ., concur.


author: PRESIDING JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN CARTER, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 91—0188
    Opinion filed March 19, 1993.

      Michael J. Pelletier and Anna Ahronheim, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Christine Cook, and Margaret J. Faustmann, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Following a bench trial, defendant Stephen Carter was convicted of the first degree murder of Weldon Houston (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)) and was sentenced to a term of 30 years. On appeal, defendant contends that (1) he was denied a fair trial because the trial judge’s rejection of his theories of justified use of force and second degree murder was based on two false premises; and (2) the Illinois murder statute (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1, 9 — 2) is unconstitutional because it violates principles of due process, equal protection, and separation of powers.

The relevant facts are as follows. Officer Nathan Silas testified for the State that at approximately 11 p.m. on August 11, 1988, he responded to a call of a man shot at 9200 South Langley in Chicago. When he arrived, he observed a large group of teenagers at the scene. He also saw a blue Yugo parked west of the group with the rear passenger window smashed out. Silas learned that the vehicle had belonged to the deceased. The deceased was lying in the grass in a bloodstained shirt with blood coming from his head, the result of several gunshot wounds. Donnell Frazier was at the scene distraught, crying, and very upset.

Silas conducted a search of the scene and found no weapons. The streetlight at the scene was on when he arrived. He spoke to various witnesses, including Frazier. Afterwards, he and Frazier went to the home of Bruce Owens, who had been involved in the incident leading to the deceased’s murder. When they arrived at Owens’ house, Silas had a conversation with a "man who identified himself as Owens, but who later turned out to be Jacques Michaud. Michaud gave Silas names and descriptions of various individuals which he passed on to other officers assigned to the case.

On cross-examination, Silas stated that the deceased was found lying on his back, but Silas did nót know whether someone had rolled him over after the shooting. He also did not know whether the deceased possessed a gun at any time prior to being shot.

Detective Thomas Krippel testified for the State that after receiving information from other officers and from Frazier, he went to co-defendant Gamel Bryant’s home and arrested him. Bryant was later placed in a lineup where Frazier identified him. (Bryant was also convicted of the murder of the deceased, and his conviction was affirmed by this court. (People v. Bryant (1993), 241 Ill. App. 3d 1007).) Krippel later received a telephone call from defendant. Defendant wanted to know why the police had been to his home, and Krippel told him the police had been there in regard to a shooting. Defendant stated that he would present himself at the police station. When defendant arrived at the station, he was placed in a lineup where he was also identified by Frazier. He was advised of his constitutional rights and later submitted to questioning by Krippel and an assistant State’s Attorney.

Michaud testified for the State that at approximately 10:30 p.m. on August 11, 1988, he left a restaurant and started riding his bike in the vicinity of 92nd and Langley when a young man, Marcus McCrane, called out to him. McCrane was standing on the northwest corner of the intersection with defendant, Bryant, and another young man. Bryant asked Michaud whether his belt buckle had anything to do with gang involvement, and he said no. Bryant swung at Michaud and Michaud ducked away. Michaud got off his bike and began wrestling with Bryant at which time defendant took Michaud’s beeper. Michaud asked McCrane to “get his boys off of [him].” Michaud and Bryant continued to wrestle until they heard a siren. At that time, Bryant jumped off Michaud and started running.

Michaud left his bike and began walking north. He went to a pay phone and called Frazier, one of his best friends. Michaud asked Frazier to help him get his pager back. They decided to meet at Owens’ house. Michaud admitted using Owens’ name to identify himself to police officers, and stated that he did so because he had an outstanding traffic warrant and “didn’t want to involve [his] name.”

When Frazier arrived at Owens’ house with a police officer after the shooting, he told Michaud that the deceased had been shot. Frazier described the persons who were involved, and on the basis of the descriptions, Michaud told the officer that defendant and Bryant were the gunmen.

On cross-examination, Michaud stated that he was not present when the deceased was shot. To his recollection, Bryant was not carrying a gun at the time he and Bryant wrestled.

Frazier testified for the State that on the evening in question he received a phone call from his friend Michaud. Frazier told Michaud that he would meet him at Owens’ house. Frazier was riding his motorcycle to Owens’ house when the deceased, a friend of Frazier’s, called him over to a phone booth where he was on the phone. Frazier told the deceased where he was going, and they returned Frazier’s motorcycle to his house and took the deceased’s car.

On the way to Owens’ house, Frazier and the deceased stopped to talk to Bryant at 92nd and Langley. Frazier asked him if he knew who had been fighting Michaud, and Bryant replied that he was the one. Frazier then told Bryant that the pager taken from Michaud was his. Bryant informed Frazier that the “Folks [the name of a gang] have the pager.” He and Bryant walked up the street and turned the corner. The deceased followed them in his car. Frazier saw four or five men standing around and two or three sitting in a car. One of the men standing was defendant.

Bryant approached defendant and said, “[F]olks, give him that pager.” Defendant gave Frazier the pager and tried to shake Frazier’s hand and then threw up a gang signal. Frazier gave him a brief handshake but did not return the signal. Bryant became angry and said, “[Y]ou’re not right, you’re not right. I thought you were Folks.” Frazier said, “I’m not Folks, and I’m too old for that.” Bryant then said, “[W]ell, what the hell you doing coming around here if you’re not Folks *** you’ll get whoped like your boy.” Frazier said, “[N]o, you’re not going to whop me.” Bryant then asked Frazier, “[Y]ou want to go with me?”

Frazier decided to fight Bryant because he would not be able to get away from the other men standing around. Frazier and Bryant walked back around to Langley. Defendant followed them. The deceased backed his car around the comer to where Frazier and Bryant were headed. Bryant approached Frazier swinging, and the two fought. Frazier knocked Bryant down and then heard a gunshot. He heard more gunshots and turned to see defendant holding a gun, shooting the deceased from a distance of approximately 10 feet. Frazier heard four shots. He saw the deceased fall forward holding his stomach. He did not see a gun or anything else in the deceased’s hands.

Frazier yelled to defendant, “[P]ut that up, put that up.” Defendant froze momentarily, and Bryant ran toward defendant saying, “[G]ive me that gun, give me the gun.” When Bryant reached defendant, Frazier ran, fearing that Bryant would shoot him. Bryant took the gun from defendant. While Frazier was running, he heard another gunshot. He turned around and saw Bryant standing near the deceased with his hands down holding a handgun. Frazier ran around a comer, and at this point heard one more gunshot. He turned back around the comer shortly thereafter and observed that the group of men, including defendant and Bryant, had gone. Frazier ran up to the deceased, who was lying facedown and bleeding as a result of being shot. He turned the deceased over and held him in his arms. The deceased was taken away by ambulance soon afterward. Frazier later observed that the rear passenger side window of the deceased’s car was smashed out.

Subsequently, Frazier accompanied police officers to Owens’ house, where Owens and Michaud were waiting. He told them that “they shot Weldon.” Frazier identified “they” as “the guy that you [Michaud] was fighting and the guy that was with him,” and he gave Michaud descriptions. The following day, Frazier viewed two lineups and identified Bryant in one lineup and defendant in the other.

On cross-examination, Frazier denied seeing a gun in the deceased’s hand or seeing him point a gun at defendant. When questioned as to whether he actually saw defendant pull the trigger, Frazier stated that he saw defendant pointing the gun directly at the deceased from a close distance, and then saw the deceased going down. He saw Bryant take the gun from defendant, and at this point Frazier started running. He denied removing a gun from underneath the deceased after he had been" shot.

Trent Smith testified for defendant that he was "with defendant and Bryant the night of the shooting. Smith stated that a person approached him on the" street, and Smith asked him about the belt buckle he was wearing. Bryant then stopped the individual and minutes later the two began wrestling. A beeper the individual was wearing fell off his belt, and defendant picked it up. Shortly thereafter, Bryant and the individual stopped fighting, and they departed in separate directions.

Twenty or thirty minutes later Bryant returned to the vicinity with Frazier, whose name Smith did not know. Smith, defendant and several others were standing around. Smith noticed a blue Yugo drive up at the same time Bryant arrived. Bryant approached defendant and asked for the beeper, which defendant gave to him. Bryant in turn gave the beeper to Frazier, and the two began arguing. Bryant and Frazier walked to a nearby corner, and Frazier hit Bryant. At the same time, the blue Yugo was backing up on a one-way street, Bryant and Frazier were exchanging blows. The deceased exited the Yugo carrying a gun and hit Bryant on the head. Smith shouted, “He got a pistol.” The deceased turned to defendant and held the gun towards defendant’s face from a distance of 5 or 10 feet. Defendant then pulled out a pistol and “shots started going off.” Smith recalled that four or five shots were fired. The deceased fell forward on the gun and fell facedown on the grass.

Bryant ran towards defendant and took the gun out of his hand. He shot the gun one time at the back window of the Yugo, and then he and defendant ran. Smith saw Frazier run down the street and go around a corner. Frazier returned 20 to 30 minutes later with an individual named “Tuffy.” Frazier turned the deceased over and picked up the gun the deceased had pointed at defendant. Frazier approached Tuffy with the gun, and “they had a discussion” and then left.

On cross-examination, Smith stated that he was a friend of Bryant and defendant and spent a lot of time with them. He was uncertain whether defendant and Bryant were part of a gang. Smith also never saw Frazier shake hands with defendant, nor did he see defendant attempt to flash a gang signal.

When questioned about the fight between Frazier and Bryant, Smith stated that after the deceased hit Bryant on the head with a gun, the deceased and Frazier started “rushing” Bryant. When asked about the gun, Smith was uncertain as to whether the “shiny” object the deceased was holding was in fact a gun. The deceased fired no shots. He never heard Frazier yell, “Put the gun up, put the gun up” or Bryant say to defendant, “Give me the gun.” After defendant shot the first time, the deceased grabbed his waist and began to fall forward. He was falling as the other shots were fired.

Smith admitted that he never told police what he had seen that evening, and in fact the first time he gave his recollection of the events was at trial.

Erin Williams, nicknamed “Tuffy,” testified for defendant that on the evening in question, he was sitting on his grandmother’s porch when Frazier approached him in a hysterical condition. Frazier said that the deceased had been shot. He accompanied Frazier back to the scene of the shooting. While Williams waited in an alley, Frazier ran across the street to the deceased, who was lying facedown on the ground. He observed Frazier turn the body over onto his back and pick up a “shiny object” from underneath the body. Frazier returned to Williams and attempted to hand him a small-caliber handgun, but Williams refused. Williams ran back to his grandmother’s house and told her to call the paramedics. At no time did Frazier tell Williams who shot the deceased. Williams never told the police that Frazier tried to give him a weapon on the night of the shooting.

Bryant testified that on the evening in question Frazier and the deceased pulled up in a small light blue car. Frazier exited the passenger side of the vehicle, approached Bryant and asked for his beeper. Bryant told Frazier he did not have it. Frazier asked Bryant if he was the one who had earlier fought with Michaud, and Bryant said he was. Bryant told Frazier where he could get his beeper, and they began walking down the street together. At the same time, the deceased was driving down the street. When they reached the corner, Bryant ran into a group of men, one of whom was defendant. Bryant asked defendant for the beeper, and when Bryant received it he turned it over to Frazier. The deceased told Frazier that they should leave, but Frazier said, “No, that’s the guy who had a fight with [Michaud]; I’m fixin’ to kick his ass.” Bryant and Frazier walked to the comer and started exchanging punches.

The blue car backed around the corner, and the deceased came out. The deceased approached Bryant while he was still fighting with Frazier and hit him with a gun. Bryant fell to the ground and then heard several gunshots. Frazier began running, while Bryant arose, ran over to defendant, and took the gun. He ran across the street and shot once at the back window of the deceased’s car. He then fled the scene, at some point throwing the gun into some bushes. Bryant stated that he did not fire any shots at the deceased.

On cross-examination, Bryant denied telling Frazier that “Folks got the beeper” or telling defendant and the others in the group, “Folks, give him the beeper.” He admitted initially telling the police that he did not know who fired the shots.

Defendant testified that he picked up a telephone beeper from the ground while Bryant and Michaud were fighting. Later, when Bryant asked him to return the beeper, defendant retrieved it from McCrane and gave it to Bryant. Subsequently, defendant watched Bryant and Frazier fighting. He saw the deceased get out of his vehicle holding a silver handgun, and then he saw him hit Bryant in the face with it. At that point, Smith shouted that the deceased had a gun. Defendant stated that the deceased then “rushed over towards [him]” pointing the gun at him starting from a distance of 10 to 12 feet. Defendant twice told him to stop, but the deceased continued to move toward him. Defendant thought the deceased was “fixing to kill [him].” Defendant then pulled out his gun and fired it four or five times. He acknowledged that the deceased never fired a shot from any gun.

When questioned by police initially, defendant admitted telling them that the shots were fired from an unknown location by persons unknown to him and that after he heard the shots he ran down an alley with Bryant. He further admitted never telling police that he shot the deceased in self-defense. However, defendant did inform police that the deceased hit Bryant in the head with a .25 caliber automatic gun. Defendant confirmed that he and Bryant had discussed the case at various times up until the time of trial. Defendant denied telling Krippel that he was afraid of guns and owned none.

On rebuttal, Krippel testified that when Bryant was arrested the day following the shooting, he gave an oral statement to Krippel at which time he stated that some shots had been fired but he did not know from where or by whom. He did not tell Krippel that he fired any shots, although he was not directly asked that question. Krippel also testified as to an oral statement given by defendant in which defendant stated that he was afraid of guns and did not own any weapons.

Defendant’s bench trial proceeded simultaneously with Bryant’s jury trial. The trial court, rejecting defendant’s claims of justified use of force and, alternatively, second degree murder, convicted him of first degree murder and sentenced him to a term of 30 years.

Defendant first contends that the trial court denied him a fair trial by rejecting his theories of justified use of force (self-defense) and second degree murder based on an unreasonable belief in self-defense on the basis of two false premises: (1) that he was impeached by his failure to tell police during questioning that the deceased was armed; and (2) that the State rebutted his claim of self-defense with the testimony of two eyewitnesses when, in fact, there was only one. Defendant argues that but for its erroneous belief in these two false premises, the trial court would have either acquitted him or convicted him of the lesser offense of second degree murder.

A person is justified in using deadly force against another when he reasonably believes that such conduct is necessary to defend himself against such other’s imminent use of deadly force (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 1). Justified use of force, or self-defense, is an affirmative defense to first degree murder. A person commits the offense of second degree murder when he commits first degree murder and at the time of the killing believes the circumstances to be such that, if they existed, would justify or exonerate the killing, but such belief is unreasonable. Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a)(2).

At trial, defendant testified that the deceased, armed with a handgun, rushed towards him pointing the gun at him. According to defendant, he told the deceased twice to stop, but the deceased continued to approach him. He stated that he thought the deceased was going to kill him so he pulled out his gun and shot the deceased four or five times.

In determining whether defendant’s claim of self-defense was merited, the trial court made the following pertinent comments:

"[Tjhe very credible question that one has to ask is, did this Defendant reasonably believe that Mr. Houston sas [sic] armed with a dangerous weapon and intended to do him bodily harm? Or stated differently, is the placing of a gun in Mr. Houston’s hands now an afterthought, or is that in fact what the Defendant reasonably believed?
The evidence in this case that tends to place a gun in Mr. Houston’s hands comes from the Defendant and Ms witnesses at the first opportunity to proclaim that his conduct was justifiable within the parameters of the law. He fails to do so knowing full well that it was he who brought about the death of Mr. Houston. The law is [clear] that a person’s credibility may be impeached by his failure to proclaim that which one would expect he would proclaim when given an opportunity to do so, is [sic] classic impeachment by omission which is just as strong, just as forceful, just as relevant as impeachment by a prior inconsistent statement.
*** [T]he time allowing one to compose one’s self and to have the counsel of one’s soul [to] be brought into a police facility and elect not to tell the police, the only thing that could make the conduct non-criminal is, in my judgment, unexplained.
So I find that this Defendant has been impeached on the most crucial issue in this case ***.” (Emphasis added.) „

In rejecting defendant’s self-defense claim, the trial court employed the rule of impeachment by omission. This rule permits the trier of fact to use prior silence to discredit a witness’ testimony so long as the witness had an opportunity to make a statement or offer information, and under the circumstances a person would normally have done so. People v. Conley (1989), 187 Ill. App. 3d 234, 244, 543 N.E.2d 138,145.

Defendant maintains that the quoted comments of the trial court indicate that the trial court found that his credibility was impeached by his failure to tell police that the deceased possessed a gun at the time of the shooting. Were we to accept this interpretation, we would have to agree with defendant that the trial court erred in so finding. Although the record reveals that defendant initially told police that the shots which killed the deceased were fired from an unknown location by people unknown to him, the record also reveals that defendant did eventually tell police that the deceased was holding a .25 caliber pistol and struck Bryant with it.

We cannot agree, however, with defendant’s narrow interpretation of the trial court’s comments. When their meaning is considered in the context of defendant’s proffered claim of self-defense, we cannot logically conclude that the omission which the trial court found fatal was defendant’s failure to tell police that the deceased had a gun. Rather, as the highlighted portions of the trial court’s comments bear out, the trial court’s real focus was on his failure to tell police that the deceased rushed towards him pointing the gun in such a way that he believed the deceased was going to kill him. It is readily apparent that the trial court was concentrating on these omitted details — the only details that would have justified defendant shooting the deceased — in determining that defendant’s claim of self-defense was contrived. We agree with the trial court that defendant’s failure to inform police of these critical details belies his claim, heard for the first time at trial, that he shot the deceased in self-defense.

Similarly, Smith’s failure to inform police that defendant shot the deceased to protect himself further weakens defendant’s claim of self-defense. Although the trial court did not focus on Smith’s pretrial silence to discredit his testimony, his silence nevertheless buttresses the trial court’s conclusion that defendant’s claim of self-defense was an “afterthought.”

Defendant argues that he should not be faulted for failing to tell police that the deceased came after him with the gun because he was not “acquainted with the intricacies” of the law of self-defense and was afraid that he would be confessing to murder. However, defendant was advised of his right to remain silent and his right to speak to an attorney before questioning. Waiving those rights, he chose instead to give the police a statement describing what happened the night of the shooting. After initially telling police that the shots which killed the deceased were fired from an unknown location by unknown persons, he then stated that the deceased had a gun and hit Bryant with it. Knowing that he in fact shot the deceased, defendant nevertheless failed to tell police at the first opportunity that the deceased was the aggressor and that he shot the deceased only to protect himself. A reasonable person would have informed police of these critical circumstances. Defendant’s contention, therefore, is without merit.

Defendant also argues that the trial court’s rejection of his self-defense and second degree murder claims was tainted by an erroneous belief that the State’s evidence included the testimony of two eyewitnesses. Upon reviewing the record, we agree with defendant that the trial court mistakenly believed that both Frazier and Michaud witnessed the shooting, when in fact only Frazier was present.

Notwithstanding the trial court’s erroneous belief in this regard, we decline to find reversible error. There is no question that defendant killed the deceased and, for the reasons discussed, we believe that the trial court was justified in finding that defendant’s claim of self-defense was contrived. Therefore, we uphold defendant’s conviction for first degree murder.

Defendant finally contends that the Illinois murder statute (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1, 9 — 2) is unconstitutional because it violates principles of due process, equal protection, and separation of powers. This court has on numerous and recent occasions considered and rejected these specific challenges to the constitutionality of our murder statute. (See, e.g,, People v. Banks (1992), 227 Ill. App. 3d 462, 592 N.E.2d 107; People v. Johnson (1992), 227 Ill. App. 3d 800, 592 N.E.2d 345; People v. Smallwood (1991), 224 Ill. App. 3d 393, 586 N.E.2d 636; People v. Davis (1991), 221 Ill. App. 3d 1023, 588 N.E.2d 64; People v. Guidry (1991), 220 Ill. App. 3d 406, 581 N.E.2d 38; People v. Brown (1991), 218 Ill. App. 3d 890, 578 N.E.2d 1168; People v. Wright (1991), 218 Ill. App. 3d 764, 578 N.E.2d 1090; People v. Willis (1991), 217 Ill. App. 3d 909, 577 N.E.2d 1215; People v. Gore (1991), 212 Ill. App. 3d 984, 571 N.E.2d 1041; People v. Clark (1991), 207 Ill. App. 3d 439, 565 N.E.2d 1373.) We decline to diverge from this substantial body of established precedent. We continue to hold that the Illinois murder statute is constitutional.

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

Judgment affirmed.

RAKOWSKI and GIANNIS, JJ., concur.


text:
    GLENN H. JOHNSON CONSTRUCTION COMPANY, Plaintiff-Appellant, v. BOARD OF EDUCATION, Community Consolidated School District No. 15, Defendant-Appellee.
    First District (6th Division)
    No. 1 — 92—0736
    Opinion filed March 26, 1993.

      Michael B. Roche, James D. Adducci, and L. Andrew Brehm, all of Schuyler, Roche & Zwirner, of Chicago, for appellant.
    Vedder, Price, Kaufman & Kammholz, of Chicago (Paul A. Millichap and Karen Pszanka-Layng, of counsel), for appellee.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Glenn H. Johnson Construction Company, appeals from an order of the circuit court of Cook County which denied its motion to compel arbitration of a dispute regarding monies allegedly owing from defendant, Board of Education, Community Consolidated School District No. 15. The trial court concluded that the parties evidenced their intent not to arbitrate disputes when they deleted the operative arbitration clause, section 4.5.1 of the general conditions, from their construction contract. The sole issue on appeal is whether the trial court erred in holding that the contract did not provide for arbitration of the parties' dispute.

The relevant facts are as follows. Defendant hired plaintiff to be the general contractor on a project involving the construction of Kimball Hill Elementary School in Rolling Meadows, Illinois. In addition to the construction of the new school, the project included the demolition and removal of the existing Kimball High School building, the removal of fuel tanks buried on the site, and the potential removal of contaminated and unsuitable soil. Pursuant to the parties' contract, plaintiff agreed to dispose of contaminated soil at a unit price of $110 per cubic yard, and to remove and dispose of unsuitable soil at a price of $18 per cubic yard. (For purposes of this appeal, the relevant documents comprising the parties' contract include the general conditions, the supplementary conditions, and the additional supplementary conditions. The latter two modify, delete from and/or add to the general conditions.)

As the preparation of the project site commenced, plaintiff identified areas containing contaminated and unsuitable soil. Plaintiff removed the soil from the site and disposed of it at an approved waste disposal facility. Subsequently, plaintiff submitted change orders and invoices to defendant for the cost of removing and disposing of the soil. According to plaintiff, defendant was billed for the soil removal and disposal at the rates specified in the contract. Defendant’s architect denied plaintiff’s claim in part, and defendant refused to pay the portion which the architect disputed.

Consequently, on October 2, 1990, plaintiff submitted its demand for arbitration (Demand) to the American Arbitration Association (AAA) seeking the arbitration of its claim against defendant pursuant to the Construction Industry Arbitration Rules (Rules). (The AAA does not act as an arbitrator, but rather administers arbitrations in accordance with the agreement of the parties and maintains panels from which arbitrators may be chosen by the parties.) On October 9, 1990, the AAA case administrator, Matthew Luzi, wrote a letter to the parties acknowledging receipt of plaintiff’s Demand, informing defendant of its right to file an answering statement, and requesting the parties to select an arbitration panel.

In response to plaintiff’s Demand, on October 18, 1990, defendant sent its response to the AAA disputing the arbitrability of plaintiff’s claim. Defendant informed Luzi that the contract clause permitting arbitration of such claims, namely section 4.5.1 of the general conditions, had been deleted in its entirety by the additional supplementary conditions. Defendant explained that in the absence of the operative language of section 4.5.1, the AAA lacked authority to move forward with plaintiff’s Demand. Defendant also informed Luzi that plaintiff had failed to attach to its Demand a copy of the additional supplementary conditions evidencing that section 4.5.1 had been deleted.

On October 19, 1990, plaintiff wrote to Luzi explaining its position concerning the arbitrability of claims arising out of the contract. Plaintiff acknowledged that the additional supplemental conditions deleted section 4.5.1, but disagreed that this deletion eliminated defendant’s obligation to arbitrate the subject dispute. In support of this contention, plaintiff highlighted the language of section 4.4.4 of the general conditions which provides, in pertinent part: “[T]he Architect will notify the parties in writing that the Architect’s decision will be made within seven days, which decision shall be final and binding on the parties but subject to arbitration.” (Emphasis added.) Plaintiff also noted that sections 4.5.2 through 4.5.7 of the general conditions, which relate to and govern procedures for arbitration proceedings between the parties, were left intact notwithstanding the deletion of section 4.5.1.

On October 22, 1990, defendant submitted another letter to the AAA essentially repeating its position concerning the interpretation of the parties’ contract.

On November 6, 1990, Luzi sent a letter to the parties stating:

“The AAA, after reviewing the contentions of the parties and the Arbitration agreement, has determined that an issue as to arbitrability exists which may be determined by an Arbitrator^).”

Upon receipt of this letter, defendant, on November 13, 1990, wrote a letter directly to the AAA’s regional vice-president, David Scott Carfello, again challenging the arbitrability of the parties’ dispute. Plaintiff received a copy of this letter on Friday, November 16, 1990. On Monday, November 19, 1990, plaintiff telephoned the AAA and requested an opportunity to respond in writing to defendant's letter. Plaintiff was allegedly informed that no action would be taken in response to defendant’s letter until plaintiff had an opportunity to respond to it in writing.

Before plaintiff responded, however, on November 21, 1990, Carfello issued the AAA’s final ruling concerning its authority to arbitrate the parties’ dispute. Carfello stated:

“As relayed to each side, the Association has determined that based on the contentions of the parties, the Association is without authority to process this arbitration.
If the parties would be willing to submit to arbitration concerning this matter, under the Rules of the American Arbitration Association, the Association will proceed to administer this matter.”

Accordingly, on or about January 9, 1991, plaintiff filed a petition to compel arbitration in the circuit court of Cook County. In count I, plaintiff sought an order compelling arbitration of the parties’ dispute. In the alternative, and only in the event the trial court determined that the parties’ dispute was not arbitrable, plaintiff sought in count II an adjudication that it was entitled to the amounts allegedly owing from defendant.

In response to the petition, on February 15, 1991, defendant filed its answer, affirmative defenses, and counterclaim denying the arbitrability of the petition and any claims for monies due, and asserting claims against plaintiff for breach of contract.

After a lengthy discovery process, on November 19, 1991, plaintiff filed its motion to compel arbitration of the dispute, requesting the same relief it sought in count I of its petition. After the parties briefed the motion and delivered oral arguments, the trial court issued an order denying the motion. The trial court found that section 4.5.1 of the general conditions was the key provision creating the right to arbitration and, accordingly, concluded that its deletion established the parties’ lack of intent to arbitrate disputes. The trial court subsequently transferred the matter to the law division for an adjudication of the merits of the parties’ dispute. This appeal followed.

Although the order appealed from in this case is interlocutory, we nevertheless have jurisdiction, since the trial court’s denial of the requested relief is analogous to the denial of an injunction. (J & K Cement Construction, Inc. v. Montalbano Builders, Inc. (1983), 119 Ill. App. 3d 663, 667, 456 N.E.2d 889, 893.) The sole question before a reviewing court on an interlocutory appeal is whether there was a sufficient showing to sustain the order of the trial court granting or denying the relief sought. (Nelson v. Roger J. Lange & Co. (1992), 229 Ill. App. 3d 909, 911, 594 N.E.2d 391, 392; Montalbano Builders, 119 Ill. App. 3d at 667, 456 N.E.2d at 893.) We conclude that there was a sufficient showing and therefore affirm the trial court’s order denying plaintiff’s motion to compel arbitration.

In the absence of a statute mandating arbitration (see, e.g., State Farm Fire & Casualty Co. v. Yapejian (1992), 152 Ill. 2d 533, 605 N.E.2d 539), “parties to an agreement are bound to arbitrate only those issues which by clear language and their intentions expressed in the language show they have agreed to arbitrate.” (Rauh v. Rockford Products Corp. (1991), 143 Ill. 2d 377, 387, 574 N.E.2d 636, 641.) “At a hearing to stay a judicial proceeding and to compel arbitration, the trial court should concern itself solely with whether an agreement exists to arbitrate the dispute in question.” Montalbano Builders, 119 Ill. App. 3d at 669, 456 N.E.2d at 894.

Where an arbitration agreement exists, and it is apparent that the parties’ dispute falls within the scope of that agreement, the court should decide the arbitrability issue and compel arbitration. (Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr (1988), 124 Ill. 2d 435, 445, 530 N.E.2d 439, 443.) Similarly, if it is apparent that no arbitration agreement exists or if the issue disputed by the parties is not within the scope of that agreement, the court should decide the arbitration issue in favor of the party opposing arbitration. (Donaldson, 124 Ill. 2d at 445, 530 N.E.2d at 443.) However, in cases where the issue of contractual intention as to the arbitrability of a given dispute is reasonably debatable — such as where the parties broadly agree to arbitrate but it is unclear whether the subject matter of the dispute falls within the scope of the arbitration agreement — the arbitrability question is to be decided initially by the arbitrator. Donaldson, 124 Ill. 2d at 446, 530 N.E.2d at 444.

We concur with the trial court in holding that no arbitration agreement existed in this case. As the trial court properly determined, section 4.5.1 of the general conditions created the parties’ right to arbitrate disputes and represented their general agreement to do so. When this section was deleted by the additional supplementary conditions, the right of the parties to arbitrate disputes was also eliminated. The remaining clauses pertaining to arbitration derived their force from section 4.5.1, as the contract clearly indicates. Thus, in the absence of the operative arbitration language contained in section 4.5.1, these clauses are without effect.

In arriving at our conclusion that the deletion of section 4.5.1 evidenced the parties’ intent not to arbitrate disputes, but rather to litigate them, we look first to the section’s language and the caption which precedes it, and also to the Rules of the AAA:

“A.5 ARBITRATION
If.5.1 Controversies and Claims Subject to Arbitration.
Any controversy or Claim arising out of or related to the Contract, or the breach thereof, shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction thereof ***. Such controversies or Claims upon which the Architect has given notice and rendered a decision as provided in Sub-paragraph 4.4.4 shall be subject to arbitration upon written demand of either party. Arbitration may be commenced when 45 days have passed after a Claim has been referred to the Architect as provided in Paragraph 4.3 and no decision has been rendered.” (Emphasis added.)

Significantly, the AAA’s Rules expressly state:

“The parties can provide for the arbitration of future disputes by inserting the following clause into their contracts:
Standard Arbitration Clause
Any controversy or claim arising out of or relating to the Contract, or the breach thereof, shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction thereof.”

As is apparent, this “Standard Arbitration Clause,” providing for the arbitration of disputes, was adopted verbatim by the parties and inserted as the first part of section 4.5.1 (as indicated by the highlighted portion of that section). There can be no other reasonable explanation but that in so doing, the parties intended therein to create the right, and accompanying agreement, to submit their disputes to arbitration. However, as stated, this clause and the remainder of section 4.5.1 were expressly deleted by the parties when the additional supplementary conditions were incorporated as part of the contract. Accordingly, the right of the parties to arbitrate disputes was eliminated.

Further, as defendant aptly points out, the AAA’s Rules mandate that the parties to a contract must specifically authorize the AAA to administer an arbitration or must specify that they agree to arbitration under its Rules before the AAA may assume jurisdiction of a dispute. This specific authorization was incorporated into the language of section 4.5.1. Since the parties deleted this section, the AAA no longer had jurisdiction to administer the arbitration of the parties’ disputes.

In response to this argument, plaintiff contends that section 4.5.2 of the general conditions contains the required authorization for the AAA to handle the parties’ disputes. In relevant part, section 4.5.2 states:

“Claims between the Owner and Contractor not resolved under Paragraph 4.4 shall, if subject to arbitration under Subparagraph 4.5.1, be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect ***.” (Emphasis added.)

Although this section appears to authorize the AAA to administer arbitration of the parties’ disputes, this authorization is illusory. In reality, under section 4.5.2, the AAA only has jurisdiction over the parties’ disputes if those disputes were subject to arbitration under section 4.5.1, as the highlighted language of section 4.5.2 clearly indicates. From this language it is apparent that section 4.5.2 derived its force from the arbitration agreement contained in section 4.5.1, which no longer exists. The same can be said for the remaining sections falling under the principal “ARBITRATION” heading — sections 4.5.3 through 4.5.7 — which merely provide details regarding how to initiate and conduct an arbitration proceeding assuming a right to arbitration exists. Thus, plaintiff’s argument is without merit.

Plaintiff similarly points to section 4.4.4 of the general conditions in support of its contention that the deletion of section 4.5.1 is not determinative on the issue of arbitrability. Section 4.4.4 states, in pertinent part:

“If a Claim has not been resolved after consideration of the foregoing and of further evidence presented by thé parties or requested by the Architect, the Architect will notify the parties in- writing that the Architect’s decision will be made within seven days, which decision shall be final and binding on the parties but subject to arbitration.” (Emphasis added.)

In plaintiff’s view, this clause, together with section 4.3.2 of the general conditions, which discusses when the architect’s decision concerning a dispute is required as a condition precedent to arbitration or litigation, demonstrates that an agreement to arbitrate the dispute at issue remains. This argument is also without merit, however, because section 4.5.2, shown above, makes clear that the disputes referred to in section 4.4.4 (which are the same as those referred to in section 4.3.2) are only arbitrable when section 4.5.1 declares that they are arbitrable. Since section 4.5.1, representing the pivotal arbitration agreement between the parties, was deleted, these and other remaining references to arbitration contained in the contract are without force.

Plaintiff argues that a holding in favor of defendant flies in the face of the fundamental principle of contract construction, that contracts are to be interpreted as- a whole, giving meaning and effect, if possible, to each provision of the contract. (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 283, 154 N.E.2d 683; Srivastava v. Russell’s Barbecue, Inc. (1988), 168 Ill. App. 3d 726, 730, 523 N.E.2d 30, 33.) Plaintiff maintains that it is necessary to give meaning to the numerous references to arbitration remaining in the contract after the deletion of section 4.5.1. On the contrary, these clauses are meaningless standing alone, without the force and effect given them by section 4.5.1. The primary object of contract construction is to give effect to the intention of the parties. (Martindell, 15 Ill. 2d at 283, 154 N.E.2d at 689.) The construction which the trial court adopted here is the only logical one under the circumstances. It is to us quite clear that in deleting section 4.5.1 from the contract, the parties were communicating their intent to eliminate arbitration as a means of resolving their disputes. Although we grant that defendant’s failure to delete every reference to arbitration was perhaps the result of hasty or careless drafting, we believe nonetheless that the trial court’s ruling properly expresses the parties’ intent to litigate rather than arbitrate their disputes.

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

Judgment affirmed.

EGAN and RAKOWSKI, JJ., concur.