text:
    WILLIAM J. MOORE et al., Plaintiffs-Appellees, v. DANIEL STREIT, Defendant-Appellant.
    Second District
    No. 2—88—0653
    Opinion filed April 13, 1989.

      Stephen M. Haugh, of Michael C. Poper, P.C., of Crystal Lake (Michael C. Poper, of counsel), for appellant.

      Kell, Nuelle & Loizzo, of Woodstock (Thomas F. Loizzo, of counsel), for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiffs, William Moore, chief of police for the Village of Cary, and six other Cary police officers, filed an action for slander against defendant, Daniel Streit, the owner of an automotive body shop in the village. The jury awarded no actual damages to plaintiffs, but awarded $6,500 in punitive damages to Moore and $1,500 in punitive damages to each of the other six plaintiffs. Defendant raises the following contentions on appeal: (1) that it was improper to award punitive damages to plaintiffs when there were no actual damages; (2) that the trial court erred by giving certain instructions which permitted the jury to presume malice if the alleged defamatory remarks were slanderous per se; (3) that since Moore was the only plaintiff specifically named in the alleged slanderous remarks, the other plaintiffs were not entitled to recover; (4) that a certain anonymous flyer critical of the Cary police force was erroneously admitted into evidence; and (5) that the trial court erred by denying defense motions for a mistrial as a result of certain misconduct by the attorneys for plaintiffs. We reverse and remand.

At trial, plaintiffs presented evidence concerning numerous allegedly slanderous statements made by defendant, including many which were not alleged in their amended complaint. In the following summary of the evidence presented at trial, we will focus primarily upon testimony relating to the slanderous remarks actually alleged in the amended complaint.

Gary Verdung testified that he had a conversation with defendant at the River Bend Restaurant in September 1981. Verdung’s wife was present along with Jack Schaffer and his wife. At the time, Verdung was a member of the McHenry County board. Defendant stated that Chief Bill Moore was taking payoffs with regard to towing policies. Verdung testified that he did not believe defendant and did not believe the comment was very serious.

Bernard Borscha testified that he was the manager of Cary Auto-body. Borscha had a conversation with defendant at the Cary Pub in March 1981. Greg Tricker was also present. Defendant stated that Borscha’s boss and another man were paying off the chief, the cops in Cary, and the cops in McHenry County and that was why Cary Auto-body was getting so many tow calls. Borscha told defendant he was crazy.

Dennis Keys, an officer with the Cary police department, testified that he had a conversation with defendant in April 1981 at Streit’s Auto Body shop. Keys remembered that other people were present but did not remember who they were. Defendant stated that certain officers in the police department were on the take. After Keys asked him what he meant, defendant stated that Chief Moore and certain unnamed other officers were taking money from Grove Standard with regard to the towing of vehicles involved in accidents or arrests. Defendant also questioned Keys as to where Moore was getting the money to buy certain personal property.

In July 1981, Keys had a conversation with defendant at the River Bend Restaurant in an unincorporated area near Cary. Defendant bought Keys a beer, and they began to talk. Defendant again told Keys that Moore and other Cary police officers were taking money and said he was going to prove it. Keys told defendant that he did not know what he was talking about and excused himself.

Over defendant’s objection, the trial court admitted into evidence two statements purportedly given by Frank Romano to a Cary police officer in February 1982. Romano testified that he signed the February 8, 1982, statement which did not mention any allegedly slanderous remarks made by defendant. Romano testified that he was not sure if the signature appearing on the statement dated February 5, 1982, was his. In the latter statement, Romano purportedly related certain comments made by defendant at Whitey Hersh’s home in November 1981 in the presence of Romano and Hersh. According to the written statement, defendant said that he knew the Cary cops were on the take from Grove Standard and Neeley and he just had to prove it. He also said that in other towns, the police chief gets a percentage of the tows, and he knows Chief Moore is getting his share. Defendant admitted to the others, according to this statement, that he had no evidence of payoffs and stated he was trying to discredit Chief Moore so that the village would set the towing policy instead of the chief. This would enable defendant to sue the village.

In addition to stating that he was not sure if the signature on the February 5, 1982, statement was his, Romano testified that he did not even know the meaning of some of the words attributed to him in the statement. Romano was never asked about the accuracy of any of the answers attributed to him in the statement, including those mentioning defendant’s allegedly slanderous statements of November 1981. The officer who took the statement, Lieutenant David Burman, did testify, but was asked no questions about the statement.

A statement signed by Michael Knutson was admitted into evidence. Knutson testified that he gave the statement to a Cary police officer on December 14, 1981. According to the statement, Knutson was standing in front of Streit’s Auto Body on April 8, 1981, along with five other men. One of the men stated that Chief Moore was on the take. Knutson did not know who this man was at the time but found out later that it was defendant.

Knutson testified that he was chairman of the village police committee in 1981. He further testified that as of December 14, 1981, the date he gave the statement to the Cary officer, he had never met defendant. He now knew defendant very well and did not believe that defendant was the man who told him Chief Moore was on the take. Knutson stated that he originally thought that the man in question was defendant because after the man left the scene, Don Toomey, one of the other individuals who was present, stated that it was defendant.

Chief Moore testified that after defendant told him in May 1980 that some members of his department were taking payoffs with regard to towing, he ordered an internal investigation which turned up no evidence of wrongdoing. Moore stated that he had never taken a bribe. He also testified that in May 1983, an unknown individual left a sheet of paper on the desk of each village trustee which stated, “ATTENTION ANY COMMUNITY THAT TOLERATES A VENAL OR VICIOUS POLICE FORCE DESERVES TO BECOME ITS VICTIMS AND EVENTUALLY HAS MORE TO FEAR FROM ITS ‘PROTECTORS’ THAN ITS CRIMINAL PREDATORS.” This document was admitted into evidence over plaintiffs’ objection.

Defendant testified both as an adverse witness and on his own behalf. He denied making any of the statements attributed to him by plaintiffs’ witnesses in which he allegedly accused Chief Moore and other Cary police officers of accepting payoffs.

After defendant rested, the trial court held an instructions conference. Defendant objected to each of the following three proposed instructions, which were given to the jury over his objection:

“Exemplary or punitive damages may be awarded where actual malice exists; however, the recovery of exemplary or punitive damages is not limited to cases of actual or express malice, but may be awarded on the basis of implied malice when the words published are actionable per se.”
“Use of oral words imputing the commission of a crime is slanderous per se and damages need not be specifically pleaded and malice will be implied.”
“When defamatory words are slanderous per se, the law will imply malice and such is presumed.”

The jury found defendant liable, but awarded no actual damages. The jury did, however, award $6,500 in punitive damages to Chief Moore and $1,500 apiece in punitive damages to each of the other six plaintiffs. Defendant’s post-trial motion was denied by the trial court. Defendant filed a timely notice of appeal.

The general rule in Illinois is that a party may not recover punitive damages in the absence of actual damages. (McGrew v. Heinold Commodities, Inc. (1986), 147 Ill. App. 3d 104, 110, 497 N.E.2d 424, 429; Rhodes v. Uniroyal, Inc. (1981), 101 Ill. App. 3d 328, 330, 427 N.E.2d 1380, 1382.) Defendant argues that the failure of the jury to award any actual damages precludes the awards of punitive damages. Plaintiffs respond by contending that in defamation actions, punitive damages may be awarded without any showing of actual damage if the statements giving rise to the cause of action are defamatory -per se and were made with actual malice.

The above issue has been considered in two Illinois cases in which the courts reached opposite conclusions. In Tunnell v. Edwardsville Intelligencer, Inc. (1968), 99 Ill. App. 2d 1, 241 N.E.2d 28, rev’d on other grounds (1969), 43 Ill. 2d 289, 252 N.E.2d 538, the court upheld a jury verdict in a libel case in which plaintiff was given no award of actual damages but awarded $35,000 in punitive damages. The court cited the long-established rule that in cases involving statements which are defamatory per se, damage to reputation is presumed. (Tunnell, 99 Ill. App. 2d at 9, 241 N.E.2d at 32.) The court went on to state as follows:

“To adopt the view that punitive damages in such defamation cases were dependent upon the allowance of actual damages, would be to allow a defamer some immunity because of the excellent reputation of the person defamed, and allow the defamer to become the beneficiary of the unassailable reputation of the one defamed.” (99 Ill. App. 2d at 9, 241 N.E.2d at 32.)

The court held that if the language complained of is defamatory per se, a jury may award punitive damages in a defamation case without awarding actual damages. (99 Ill. App. 2d at 10, 241 N.E.2d at 32.) The Illinois Supreme Court reversed in Tunnell on the basis that the allegedly defamatory publication was not made with actual malice. Tunnell, 43 Ill. 2d at 247, 252 N.E.2d at 543.

In Doss v. Field Enterprises, Inc. (1975), 30 Ill. App. 3d 953, 332 N.E.2d 497, plaintiff filed a libel action because of an article published by defendant which linked him to organized crime. The court held that plaintiff could not recover because the article was covered by the privilege to report the acts and utterances of governmental bodies and officials. (Doss, 30 Ill. App. 3d at 955, 332 N.E.2d at 499.) The court also noted that plaintiff’s attorney admitted at one point during a hearing that plaintiff had not suffered any damage as a result of the article. The court stated that under the United States Supreme Court’s holding in Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997, plaintiff would have to plead and prove that he suffered some actual damage in order to recover. Doss, 30 Ill. App. 3d at 955, 332 N.E.2d at 499.

The court held in Gertz that defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth may only recover damages which are sufficient to compensate them for actual injury. (Gertz, 418 U.S. at 349, 41 L. Ed. 2d at 811, 94 S. Ct. at 3012.) The Supreme Court subsequently held that Gertz only applied when the alleged defamatory speech involves a matter of public concern. (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985), 472 U.S. 749, 761, 86 L. Ed. 2d 593, 603-04, 105 S. Ct. 2939, 2946.) The court did not explicitly hold in Gertz, as the Doss opinion seems to imply, that proof of actual damage is a requisite to recovery in all defamation cases involving public figures or matters of public concern.

The court did, however, use rather emphatic language in Gertz to warn of the potential negative impact of presumed and punitive damages upon the exercise of first amendment rights. With regard to presumed damages, the court stated as follows:

“Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact. More to the point, the States have no substantial interest in securing for plaintiffs such as this petitioner gratuitous awards of money damages far in excess of any actual injury.” Gertz, 418 U.S. at 349, 41 L. Ed. 2d at 810-11, 94 S. Ct. at 3011-12.

The court stated as follows with regard to punitive damages:

“We also find no justification for allowing awards of punitive damages against publishers and broadcasters held liable under state-defined standards of liability for defamation. In most jurisdictions jury discretion over the amounts awarded is limited only by the gentle rule that they not be excessive. Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. And they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship, but, unlike the former rule, punitive damages are wholly irrelevant to the state interest that justifies a negligence standard for private defamation actions. They are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. In short, the private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury.” Gertz, 418 U.S. at 350, 41 L. Ed. 2d at 811, 94 S. Ct. at 3012.

The above language from Gertz has led some courts from other jurisdictions to conclude that proof of actual damage is a constitutional requisite to recovery in a defamation action. (See, e.g., Schiavone Construction Co. v. Time, Inc. (D.N.J. 1986), 646 F. Supp. 1511, 1519 (actual damage necessary in all defamation actions involving public figures or matters of public concern); Memphis Publishing Co. v. Nichols (Tenn. 1978), 569 S.W.2d 412, 419 (actual damage a requisite to recovery in all defamation actions).) Other courts have refused to read Gertz so broadly and have held that presumed and punitive damages may be awarded if actual malice as defined in the case of New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710, is shown. See Carson v. Allied News Co. (7th Cir. 1976), 529 F.2d 206, 214 (applying Illinois law); Continental Cablevision, Inc. v. Storer Broadcasting Co. (D. Mass. 1986), 653 F. Supp. 451, 461 (applying Missouri law).

We believe that Gertz permits States to allow recovery of presumed and punitive damages in cases involving matters of public concern in the absence of any showing of actual damage if the defamatory statements were made with actual malice. The court stated in Gertz, “It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury.” (Emphasis added.) (Gertz, 418 U.S. at 349, 41 L. Ed. 2d at 811, 94 S. Ct. at 3012.) The court also said, “[W]e hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” (Emphasis added.) (418 U.S. at 349, 41 L. Ed. 2d at 810, 94 S. Ct. at 3011.) As the court noted in Carson, it can reasonably be implied from this language that if the actual malice standard set forth in New York Times is met, presumed and punitive damages may be awarded without any showing of actual damage. (Carson, 529 F.2d at 214.) Otherwise, the court could have explicitly held that presumed and punitive damages are unconstitutional in all defamation actions absent a showing of actual damage. Continental Cablevision, Inc., 653 F. Supp. at 461.

In Gertz, the court gave little weight to the State interests advanced by the availability of presumed and punitive damages in defamation actions. The court gave greater weight to these interests more recently in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1984), 472 U.S. 749, 86 L. Ed. 2d 593, 105 S. Ct. 2939. In Dun & Bradstreet, the court stated that the rationale of the common-law rules permitting awards of presumed and punitive damages in the absence of proof of actual damage in cases involving statements which are defamatory per se is that it will be impossible to prove actual damage in many cases where it is practically certain from the character of the defamatory statements and the circumstances of publication that damage occurred. (Dun & Bradstreet, 472 U.S. at 760, 86 L. Ed. 2d at 603, 105 S. Ct. at 2946.) The court stated further that allowing presumed damages “furthers the state interest in providing remedies for defamation by ensuring that those remedies are effective.” (472 U.S. at 761, 86 L. Ed. 2d at 603, 105 S. Ct. at 2946.) It held that if the defamatory speech does not involve a matter of public concern, presumed and punitive damages may be awarded even if actual malice is not shown. 472 U.S. at 761, 86 L. Ed. 2d at 604, 105 S. Ct. at 2946.

While Dun & Bradstreet did not involve the same issue as the case at bar, we believe that the court’s recognition of the State’s interest in allowing presumed and punitive damages in some defamation actions is both relevant and significant with regard to this case. The court has recognized that in many instances, it is impossible to prove actual damage in a defamation action because of the intangible nature of one’s reputation, even though the character of the defamatory statements makes it a virtual certainty that damage has occurred. (472 U.S. at 760, 86 L. Ed. 2d at 603, 105 S. Ct. at 2946.) The question presented here is whether first amendment concerns deny any possibility of recovery in such an instance, even when the defamatory statements are made with knowledge of their falsity or with reckless disregard for the truth.

The landmark case of New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710, involved an advertisement which accused southern authorities of attempting to suppress the civil rights movement. The court framed the paramount issue of the case in the following manner:

“The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.” (New York Times, 376 U.S. at 271, 11 L. Ed. 2d at 701, 84 S. Ct. at 721.)

The court went on to hold that the first amendment precludes public officials from recovering damages for defamatory falsehoods relating to their official conduct unless they proved that the statements were made with actual malice, which the court defined as making an untrue statement with knowledge it was false or with reckless disregard of whether it was false or not. 376 U.S. at 279-80, 11 L. Ed. 2d at 706, 84 S. Ct. at 726.

In New York Times, the court recognized that erroneous statements were an inevitable by-product of free debate and that they needed to be constitutionally protected if first amendment freedoms of expression were to have the breathing space that was essential to their existence. (376 U.S. at 271-72, 11 L. Ed. 2d at 701, 84 S. Ct. at 721.) The court did not, however, afford such protection to erroneous statements made with knowledge of their falsity or with reckless disregard of whether they were false or not. In effect, the court answered the question it posed regarding whether statements about public officials and public issues lose their first amendment protection because they are false by concluding that they do not unless they are made with actual malice. It is therefore a fair inference from Néw York Times that defamatory statements made with actual malice are afforded little or no first amendment protection. Accordingly, we hold that the State’s legitimate interest in providing effective remedies to plaintiffs in defamation actions by permitting the assessment of presumed and punitive damages for false statements made with actual malice which are defamatory per se outweighs the minimal first amendment protection afforded to false statements made with actual malice. We therefore decline to follow Doss and conclude that the absence of actual damage does not preclude plaintiffs from recovering punitive damages if the statements were defamatory per se, and defendant’s liability was established under the New York Times actual malice standard.

Communications are considered defamatory per se if they are injurious on their face and impute matter falling within one of the following four categories: (1) the commission of a criminal offense; (2) infection with a communicable disease which would tend to exclude one from society; (3) inability to perform or want of integrity in the discharge of duties of office or employment; and (4) matter prejudicing a party in his profession or trade. (Whitby v. Associates Discount Corp. (1965), 59 Ill. App. 2d 337, 340-41, 207 N.E.2d 482, 484-85.) The rationale behind allowing presumed and punitive damages in the absence of proof of actual damage when a statement is defamatory per se is that the words are so obviously and naturally harmful to the plaintiff that proof of their injurious character can be dispensed with. Costello v. Capital Cities Communications, Inc. (1988), 125 Ill. 2d 402, 414, 532 N.E.2d 790, 795.

There is little doubt that the alleged defamatory statements fall into more than one of the above four categories. Acceptance of bribes by a police officer would appear to constitute a criminal offense under section 29A—2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 29A — 2). While imputation of the commission of a criminal offense is not defamatory per se unless the offense charged is indictable, involves moral turpitude, and is punishable by a term of imprisonment (American Pet Motels, Inc. v. Chicago Veterinary Medical Association (1982), 106 Ill. App. 3d 626, 629, 435 N.E.2d 1297, 1300), the crime of accepting a bribe meets each of these requisites. Furthermore, the alleged statements also impute a lack of integrity on the part of plaintiffs in the discharge of their duties as police officers and tend to prejudice them in their profession.

It is noteworthy, however, that none of the plaintiffs other than Chief Moore was specifically named by defendant in the alleged defamatory remarks. According to the testimony, defendant referred only to “the Cary cops,” “some of the Cary cops,” and “other Cary police officers” in addition to Chief Moore. In Colucci v. Chicago Crime Comm’n (1975), 31 Ill. App. 3d 802, 334 N.E.2d 461, the court stated that if an individual is not named in defamatory material, the material is not defamatory per se as to that person and special damages must be pleaded with particularity. (Colucci, 31 Ill. App. 3d at 810-11, 334 N.E.2d at 468.) While the court in Colucci did not discuss the reasoning behind this holding, it finds support in some of the general principles concerning defamation per se that we have already discussed. One of the requirements for matter to be considered defamatory per se is that it must be injurious on its face. (Whitby, 59 Ill. App. 2d at 340-41, 207 N.E.2d at 484-85.) A statement that does not name an individual is not injurious to that person on its face. Additionally, as we have seen, the purpose behind presuming the existence of damage when statements are defamatory per se is that the words are so obviously and naturally harmful to plaintiff that proof of their injurious character can be dispensed with. (Costello, 125 Ill. 2d at 414, 532 N.E.2d at 795.) When an allegedly defamatory statement does not name a party but does refer to parties collectively, as in the instant case, “the Cary cops,” “some of the Cary cops,” and “other Cary police officers,” the injurious character of the statement to those parties cannot be considered so obvious as to justify dispensing with proof of actual damages.

We therefore agree with the conclusion of the court in Colucci that a statement cannot be considered defamatory per se as to an individual unless the individual is named in the statement. Since Chief Moore was the only person named in defendant’s alleged defamatory remarks, those statements were not slanderous per se as to the other six plaintiffs. Presumed damages are therefore not available to these plaintiffs, and the general rule that punitive damages cannot be awarded in the absence of actual damages applies to them. (See Continental Nut Co. v. Robert L. Berner Co. (7th Cir. 1968), 393 F.2d 283, 287 (applying Illinois law) (punitive damages may not be awarded in the absence of actual damages unless matter is defamatory per se).) Since the jury determined that these six plaintiffs suffered no actual damages, they are precluded from recovering punitive damages, and the punitive damage awards to them must be reversed.

With regard to Chief Moore, it is undisputed that, as a police officer, he must be considered a public official. (Reed v. Northwestern Publishing Co. (1988), 124 Ill. 2d 495, 508, 530 N.E.2d 474, 480.) The allegedly defamatory comments about Moore clearly involve matters of public concern since they relate to his integrity in the performance of his duties as chief of police. Under Gertz, Moore may therefore only recover punitive damages if defendant’s liability was established under the New York Times standard. (Gertz, 418 U.S. at 350, 41 L. Ed. 2d at 811, 94 S. Ct. at 3012.) It is clear that under New York Times, actual malice must be proved and may not be presumed. (New York Times, 376 U.S. at 283-84, 11 L. Ed. 2d at 708-09, 84 S. Ct. at 728.) Furthermore, in Gertz, the court stated that punitive damages may not be recovered unless liability is based upon a showing of knowledge of falsity or reckless disregard for the truth. 418 U.S. at 349, 41 L. Ed. 2d at 810, 94 S. Ct. at 3011.

In three separate instructions, the trial court erroneously advised the jury that it could imply malice on the part of defendant under certain circumstances. One instruction stated that use of words imputing the commission of a criminal offense is slanderous per se and malice will be implied. Another stated that if defamatory words are slanderous per se, the law will imply malice and such is presumed. A third instruction stated that recovery of punitive damages “is not limited to cases of actual or express malice, but may be awarded on the basis of implied malice where the words published are actionable per se.” Since these instructions clearly advised the jury that it could presume malice if the allegedly defamatory statements were slanderous per se and award punitive damages on the basis of that presumption, the jury may have imposed liability under a less demanding standard than New York Times, which does not permit such presumptions. We must therefore reverse the punitive damage awards to Chief Moore and grant defendant a new trial with regard to the defamatory comments allegedly made about Moore.

The other issues raised have been waived because defendant failed to specifically raise them in his post-trial motion. (Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 348-49, 415 N.E.2d 337, 339.) We will briefly discuss two of these issues, however, since they may recur upon retrial. First of all, the three jury instructions which we have discussed, plaintiffs instructions Nos. 17, 20, and 23, should not be given upon retrial because they improperly permit a presumption of malice if the defamatory language was slanderous per se, a presumption which New York Times does not permit in cases involving public officials.

Secondly, the anonymous flyer left on the desk of each village trustee in 1983 warning of the dangers of “a venal or vicious police force” should not have been admitted into evidence at the original trial. Evidence must be material in order to be admissible. (O’Brien v. Walker (1977), 49 Ill. App. 3d 940, 952, 364 N.E.2d 533, 541.) Evidence is material if it is offered to prove a proposition that is a matter of controversy in the case or has probative value with regard to a contested issue. (Joynt v. Barnes (1979), 71 Ill. App. 3d 187, 199, 388 N.E.2d 1298, 1307.) Since there was no evidence connecting defendant in any way to the flyer, it sheds no light upon the primary matter in controversy, whether defendant made the allegedly defamatory statements. The only contested matter to which the flyer could be relevant is damages since it could arguably indicate that the reputation of the Cary police department was poor. There was no evidence, however, tending to show that the accusations purportedly made by defendant led to the issuance of the flyer. It is therefore possible that the flyer had no relation to the accusations allegedly made by defendant. The flyer was thus immaterial and should not have been admitted into evidence. Unless plaintiff Moore produces evidence connecting the flyer to defendant or defendant’s alleged accusations, it should not be admitted upon retrial.

For reasons previously stated, we reverse the judgment of the circuit court of McHenry County awarding punitive damages to the six plaintiffs other than Chief Moore. We also reverse the award of punitive damages to Moore but, in his case only, remand the cause for a new trial.

Reversed and remanded.

REINHARD and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL DeBLIECK, Defendant-Appellee.
    Second District
    No. 2—88—0026
    Opinion filed April 13, 1989.

      Thomas F. Baker, State’s Attorney, of Woodstock (William L. Browers and Virginia M. Ashley, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Karen M. Lavin, of McHenry, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

The State appeals pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)) from an order of the circuit court of McHenry County denying its motion to “reinstate” a charge against defendant, Michael DeBlieek, and reconsider the court’s ruling quashing defendant’s arrest and suppressing evidence. The State contends that: (1) the trial court erred in denying its motion to “reinstate” a charge for driving while under the influence which was previously nol-prossed by the State; (2) the finding that defendant was improperly detained and placed under arrest was against the manifest weight of the evidence; (3) the police officer had authority to arrest defendant as a private citizen; and (4) the evidence obtained after defendant was detained should not have been suppressed. For the reasons set forth below, we reverse and remand for further proceedings.

The following facts were established at the hearing on defendant’s motion to quash arrest and suppress evidence. On August 23, 1986, Sergeant Keith Klein of the Harvard police department was on duty when he received a radio report that the McHenry County sheriff’s department was requesting assistance from the Harvard police department at the scene of a hit-and-run accident on Route 14. The sheriff’s department described the hit-and-run vehicle as a black Corvette. Sergeant Klein ordered another unit to the scene and then responded himself.

While on route to the scene, Sergeant Klein observed a black Corvette parked on the shoulder of Oak Grove Road, just off Route 14. According to Sergeant Klein, the car was partially on the roadway and was covered in corn stalks and dust. The location of the car was controverted by defendant and his companion, Glen Kellenberger, who testified that the car was completely on the shoulder. Sergeant Klein parked behind the Corvette and exited his squad car to speak to defendant and his companion.

Pursuant to Sergeant Klein’s inquiry, defendant identified himself as the owner of the car and stated that he had been involved in an accident. Defendant told Sergeant Klein that he was traveling southbound on Route 14 when another car cut him off, causing him to lose control of his car and drive into a cornfield. Sergeant Klein advised defendant that he was assisting the McHenry County sheriff’s department with the accident investigation and asked him to sit in the squad car until the county sheriff arrived. While defendant waited in Sergeant Klein’s squad car, a second officer from the Harvard police department arrived and transported defendant’s companion to another location. This was controverted by defendant and his companion, who testified that both defendant and the companion waited in Sergeant Klein’s squad car.

Deputy sheriff Vernon Holm arrived within 20 minutes and asked Sergeant Klein to remain with defendant while he completed his investigation of the accident scene. Holm returned approximately 30 to 45 minutes later and told Sergeant Klein that he could leave. Holm testified that he had defendant sit in his squad car while he filled out an accident report and noted that defendant exhibited signs of intoxication. Holm subsequently performed field sobriety tests on defendant and arrested him for driving while under the influence of alcohol (DUI).

The trial court concluded that Sergeant Klein’s actions constituted an arrest and granted defendant’s motion to quash the arrest and suppress evidence on the basis that Sergeant Klein did not have the authority to arrest defendant. The State then nol-prossed the DUI charge.

On January 6, 1988, 15 days after the State nol-prossed the DUI charge, the State filed its “MOTION FOR RECONSIDERATION OF COURT ORDER QUASHING THE ARREST AND SUPPRESSION OF EVIDENCE, AND MOTION TO REINSTATE CHARGES.” In that pleading, the State moved “that the People be allowed to reinstate the charge of Driving Under the Influence of Alcohol.” However, in its prayer for relief, the State requested that the court “grant the State leave to refilé” the DUI charge. (Emphasis added.) The State represented that if the court denied its motion for reconsideration of the order quashing the arrest and suppressing evidence, the State’s “appeal efforts would be thwarted without the reinstatement” of the DUI charge. The court denied the State’s motion, and this appeal followed.

The State first contends that the trial court erred in denying its motion to “reinstate” the DUI charge against defendant. In addressing this contention, we believe it necessary to comment on a confusing, albeit prevalent practice in the criminal courts concerning dismissals obtained by the State.

It has been held that a prosecutor’s statutory authority to prosecute impliedly confers authority to nol-pros a charge when, in his judgment, the prosecution should not continue. (People v. Verstat (1983), 112 Ill. App. 3d 90, 104; see also People v. Matuck (1988), 174 Ill. App. 3d 592, 593.) A nolle prosequi is the formal entry of record by the prosecuting attorney by which he declares that he is unwilling to prosecute a case. (21 Am. Jur. 2d Criminal Law §512 (1981).) The nature of a nolle prosequi was explained by our supreme court in People v. Watson (1946), 394 Ill. 177, 179. The Watson court stated:

“ ‘A nolle-prosequi is not a final disposition of the case, and will not bar another prosecution for the same offense. It is not an acquittal, but it is like a nonsuit or discontinuance in a civil suit, and leaves the matter in the same condition in which it was before the commencement of the prosecution.’ [Citation.] Again, it has been said that the ordinary effect of a nolle pro-sequi is to terminate the charge to which it is entered and to permit the defendant to go wherever he pleases, without entering into a recognizance to appear at any other time. If it is entered before jeopardy has attached, it does not operate as an acquittal, so as to prevent a subsequent prosecution for the same offense.” (394 Ill. at 179.)

Thus, where charges against a defendant are nol-prossed before jeopardy attaches, the State is entitled to refile the charges against the defendant. See Watson, 394 Ill. at 179; People v. Mooar (1981), 92 Ill. App. 3d 852, 853.

Notwithstanding the prosecutor’s right to refile charges previously nol-prossed against a defendant, a trend has apparently arisen in our criminal courts whereby the prosecutor brings a “motion to reinstate” a charge after it has been nol-prossed. (See Matuck, 174 Ill. App. 3d at 593.) This trend is not unlike a practice utilized in Cook County, although not sanctioned by statute, by which the prosecutor moves to strike the criminal charges with leave to reinstate (commonly referred to as an SOL). (See People v. Sanders (1980), 86 Ill. App. 3d 457, 466; see also People v. Rodgers (1982), 106 Ill. App. 3d 741, 746 (Reinhard, J., dissenting).) The substantive differences between the effect of a nolle prosequi and an SOL were discussed at great length in Sanders. (Sanders, 86 Ill. App. 3d at 467-69.) The Sanders court noted that in the case of an SOL, the charge continues to lie against the accused and may be resurrected upon the State’s motion at any time. (86 Ill. App. 3d at 467.) In distinguishing the two procedures, the court stated:

“As already noted, when a charge is SOL’d, it continues to lie against the defendant in a dormant state. The prosecution is not terminated and may be reinstated at any time upon the State’s motion. The nolle pros terminates the charge and requires the institution of a new and separate proceeding to prosecute a defendant for that offense. *** After an SOL, a defendant would still be charged with the offense, while after a nolle pros that charge would be terminated. When a charge is nolle prossed and the defendant released from custody without bond, there is no charge pending against him.” (86 Ill. App. 3d at 469.)

Justice Reinhard similarly noted the distinction between these procedures in Rodgers, where he stated that while the SOL procedure appeared to be an administrative method of avoiding the necessity of filing an additional charge, it is also significantly different from the nolle prosequi since the charge continues to lie against the defendant albeit in a dormant state. (Rodgers, 106 Ill. App. 3d at 747 (Reinhard, J., dissenting).) Accordingly, it can be seen that once a charge has been nol-prossed by the State, it cannot be “reinstated” because there is no charge pending to reinstate. People v. Stinnett (1988), 166 Ill. App. 3d 1027, 1029; see also Sanders, 86 Ill. App. 3d at 469.

Admittedly, this conclusion appears to be in conflict with some prior cases cited by the State, including a recent decision of this court which provides that a trial court’s refusal to “reinstate” charges after a dismissal of the original complaint on the State’s motion can be appealed. (See People v. Matuck (1988), 174 Ill. App. 3d 592, 593; People v. Zeigler (1982), 106 Ill. App. 3d 783, 784; People v. Marbly (1980), 85 Ill. App. 3d 935, 937.) All of these cases are reconcilable. Marbly involved an appeal from the trial court’s denial of a motion to reinstate after an SOL and is therefore clearly distinguishable. (Marbly, 85 Ill. App. 3d at 936.) The remaining cases can be traced back to our supreme court’s decision in People v. Watson (1946), 394 Ill. 177. The Watson court characterized the issue before it as whether the trial court had jurisdiction to set aside a previous order of nolle prosequi and “reinstate” a burglary charge. (394 Ill. at 179.) The court observed that other jurisdictions had found the procedure of vacature and reinstatement proper, stating:

“Where, in a criminal proceeding, the prosecuting attorney causes the entrance of an unconditional nolle prosequi or a dismissal of the indictment at one term of court, the proceeding is terminated, and the same indictment cannot be reinstated at a subsequent term and prosecution thereon resumed. [Citations.] Conversely, it is well established that there may be reinstatement of indictments while the court has control of the prosecution, as where it is done during the same term at which the nolle prosequi or dismissal was entered. [Citation.] Here, defendant had not been discharged and, so far as the common-law record discloses, was not otherwise prejudiced. The trial court *** had jurisdiction to vacate the order entered six days earlier nolle prossing the burglary charge.” (394 Ill. at 182.)

Thus, while the normal procedure following a nolle prosequi is for the State to refile the dismissed charge, Watson recognized the validity of the State moving to vacate the nolle prosequi and have the original charge reinstated for further prosecution. 394 Ill. at 182; see also People v. Zeigler (1982), 106 Ill. App. 3d 783, 784; People v. Wolsk (1983), 118 Ill. App. 3d 112, 115.

From the foregoing, it becomes apparent that reinstatement of a charge after a nolle prosequi first requires that the nolle prosequi be vacated. (Watson, 394 Ill. at 182; Zeigler, 106 Ill. App. 3d at 784.) However, while the Watson court recognized this procedure, it expressly disfavored its use. (Watson, 394 Ill. at 183.) We must agree with our supreme court’s condemnation of this procedure since, in our opinion, it is responsible for the confusion regarding the effect of a nolle prosequi. This confusion is evidenced by our recent decision in People v. Matuck (1988), 174 Ill. App. 3d 592. In Matuek, this court reiterated the rule that a trial court’s refusal to reinstate charges after a dismissal of the original complaint on the State’s motion can be appealed. (174 Ill. App. 3d at 593.) However, on reexamination it is not clear from the facts of that opinion whether the dismissal was in the nature of an SOL or a nolle prosequi. (174 Ill. App. 3d at 593-94.) Moreover, the State’s subsequent motion was characterized as both a motion to “reinstate the complaint” and a motion to “refile the charges.” (174 Ill. App. 3d at 593-94.) If the dismissal was a nolle prosequi, the State could either refile the complaint or move to vacate the nolle prosequi, have the original charge reinstated, and proceed on the original charge. Although there was no motion to vacate the nolle prosequi, it nonetheless appears that the Matuck court interpreted the State’s motion as a motion to vacate the nolle prosequi and reinstate the original charge. 174 Ill. App. 3d at 594-95.

The instant action provides us with an equally confusing set of procedural facts. It is clear from the record that the State nol-prossed the DUI charge after the trial court granted defendant’s motion to quash arrest and suppress evidence. It is equally clear that the State subsequently moved to “reinstate” the charge. However, because the nolle prosequi was not vacated, there was no charge to “reinstate.” (Watson, 394 Ill. at 182; Zeigler, 106 Ill. App. 3d at 784; see People v. Stinnett (1988), 166 Ill. App. 3d 1027, 1029; People v. Sanders (1980), 86 Ill. App. 3d 457, 469.) We will not continue to perpetuate the apparent misconception that a charge can be “reinstated” after a nolle prosequi by considering the State’s motion in this case as a “motion to vacate the nolle prosequi and reinstate.” However, we note that in the prayer for relief portion of the State’s motion, the State specifically prays that the court “reconsider its order suppressing the evidence and further grant the State leave to refile the Driving Under the Influence of Alcohol charge.” (Emphasis added.) Although the State need not ordinarily seek leave of court to refile a charge after it has been nol-prossed, we construe its motion in this case to be such a request. The State should not be barred from proceeding on a refiled charge absent a showing of harassment, bad faith, or fundamental unfairness. See People v. Valenzuela (1989), 180 Ill. App. 3d 671, 675-76; see also People v. Overstreet (1978), 64 Ill. App. 3d 287, 289.

Here, the State nol-prossed the DUI charge immediately after the court granted defendant’s motion to quash his arrest and suppress evidence. Within 15 days of that ruling, the State filed its motion seeking reconsideration of the court’s ruling quashing defendant’s arrest and suppressing evidence, and requested leave to refile the DUI charge. We can discern no evidence from the record, nor did the trial court make any finding indicating that the State’s actions were in bad faith or with the intent to harass defendant. Similarly, the record does not reflect any fundamental unfairness to defendant in allowing the State to refile the DUI charge.

Accordingly, we hold that the trial court erred in denying the State’s motion seeking leave to refile the DUI charge.

The State next contends that the trial court’s finding that Sergeant Klein had improperly detained and arrested defendant was against the manifest weight of the evidence. We agree.

The standard for appellate review of a motion to suppress is whether the trial court’s ruling was clearly erroneous. (People v. Clark (1982), 92 Ill. 2d 96, 99; People v. Wingren (1988), 167 Ill. App. 3d 313, 319.) In a hearing on a motion to suppress evidence, the defendant has the burden of proof that the evidence was the product of illegal police activity. Wingren, 167 Ill. App. 3d at 319.

In the instant action, defendant argued and the trial court found that Sergeant Klein’s detention of defendant constituted an arrest and was improper because Sergeant Klein was out of his jurisdiction at the time. Generally, a public officer appointed as a conservator of the peace for a particular county or municipality does not have authority to apprehend offenders beyond the boundaries of the county or district for which he is appointed unless authorized by statute. (5 Am. Jur. 2d Arrest §50 (1962).) The only exception to this rule under the common law is where the arresting officer is in hot pursuit of a suspected felon fleeing from the officer’s own territory. (See People v. Bains (1987), 152 Ill. App. 3d 951, 953; People v. Marino (1980), 80 Ill. App. 3d 657, 661.) As applied to officers of adjoining municipalities, this rule has been modified by sections 7 — 4—7 and 7 — 4—8 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, pars. 7 — 4—7, 7 — 4—8). (See Bains, 152 Ill. App. 3d at 953-54.) Sections 7 — 4—7 and 7 — 4—8 provide that the territory embraced by the corporate limits of adjoining municipalities in the same county constitutes a single police district and police of any municipality in the district may go into any part of the district to preserve peace. Ill. Rev. Stat. 1987, ch. 24, pars. 7 — 4—7, 7 — 4—8; see also Ill. Rev. Stat. 1987, ch. 24, par. 11— 1 — 2.1 (authorizing police of municipalities to enter into agreements to furnish each other with assistance on request).

Of course, the instant action does not involve adjoining municipalities, but rather a police officer from a municipality entering the unincorporated portion of the county in which the municipality is located to assist the county authorities at an accident scene. No specific provision has been made by the legislature for municipal and county cooperation, and sections 7 — 4—7 and 7 — 4—8 do not confer authority for the arrest in the instant action. (See People v. O’Connor (1988), 167 Ill. App. 3d 42, 44-45.) Nonetheless, we find sufficient statutory-authority for the officer’s actions in this case. Section 17 of “An Act to revise the law in relation to sheriffs” (Sheriff’s Act) (Ill. Rev. Stat. 1987, ch. 125, par. 17) provides:

“Each sheriff shall be conservator of the peace in his or her county, and shall keep the same, suppress riots, routs, affrays, fighting, breaches of the peace, and prevent crime; and may arrest offenders on view, and cause them to be brought before the proper court for trial or examination.”

Section 18 of the Sheriff’s Act provides:

“To keep the peace, prevent crime, or to execute any warrant, process, order or judgment he or she may call to his or her aid, when necessary, any person or the power of the county.” (Ill. Rev. Stat. 1987, ch. 125, par. 18.)

A person summoned by the sheriff exercises the same powers as the sheriff. See Main v. McCarty (1854), 15 Ill. 441, 442-43; see also Ill. Rev. Stat. 1987, ch. 38, par. 107 — 8(b).

Here, Sergeant Klein was responding to a request from the McHenry County sheriff’s department for assistance in responding to a hit-and-run accident that occurred in an unincorporated portion of McHenry County. Therefore, Klein, having been summoned by the sheriff, exercised the same powers as the sheriff and had authority to detain defendant. Our resolution of this issue makes it unnecessary to consider the other issues raised by the State.

The"judgment of the circuit court of McHenry County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

UNVERZAGT, P.J., and REINHARD, J., concur.


author: JUSTICE McLAREN

text:
    JANET GERWIG et al., Plaintiffs-Appellants, v. LANCE BRUERE et al., Defendants (Lakehurst Joint Venture, Defendant-Appellee).
    Second District
    No. 2—88—0611
    Opinion filed March 29, 1989.
    — Modified on denial of rehearing May 9, 1989.

      Newton E. Finn and Sullivan, Smith, Hauser & Noonan, Ltd., both of Waukegan (Richard J. Smith, of counsel), for appellants.
    Jody M. Pucel, of Haskell & Perrin, of Chicago (Stephen Sonderby, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiffs appeal the decision of the trial court striking certain testimony in evidence and denying plaintiffs’ motion to amend their complaint to conform to the proof. The trial court held that the testimony in question was not relevant to the allegations in the complaint and the proposed amendments did not, as a matter of law, constitute a lack of reasonable care given the facts of this case. We affirm.

Defendant, Lakehurst Joint Venture (Lakehurst), is an Ohio limited partnership which owned, operated, managed and maintained the Lakehurst Mall in Waukegan, Illinois. Harriet Bruere, Inc., a code-fendant, owned and operated a restaurant in the mall. At all times relevant to this cause, Lance Bruere, also a codefendant, was employed by the restaurant.

On March 9, 1985, Mr. Bruere was carrying a container of used cooking grease from the restaurant through a service corridor to a dumpster located outside the mall. There is some dispute as to the time that this occurred. It could have been as early as 10 a.m. or as late as 1 p.m. There were fire doors located in the service corridor that were closed at all times. As Mr. Bruere pushed open the fire doors and proceeded through them, he lost control of the container, and the grease spilled on the floor. Mr. Bruere attempted to clean up the spill by wiping the floor with paper towels. Mr. Bruere then returned to the restaurant and continued to work. Mr. Bruere did not inform his employer or the mall security of the incident.

Plaintiff, Janet Gerwig, was employed by Shaver’s World, a store located in the mall. At approximately 1 p.m. on March 9, Mrs. Gerwig was walking through the service corridor to the Shaver’s World warehouse. As Mrs. Gerwig passed through the fire doors, she slipped and fell. Mrs. Gerwig managed to summon help, and paramedics were called. They attended to Mrs. Gerwig and then transported her to a hospital.

The service corridor is used for employee access, deliveries, and transporting debris to the designated areas outside the building. The floor is smooth concrete, and the walls are made of cement blocks. The corridor is cleaned every morning between 5 a.m. and 10 a.m. by a cleaning service under contract with Lakehurst. Security officers employed by Lakehurst inspect the corridor every morning at approximately 9:15 a.m. Other security checks are made throughout the day as needed. Lakehurst also employs a housekeeping staff to clean up any debris or spills.

Janet Gerwig filed suit against Harriet Bruere, Inc., Harriet Bruere, Lance Bruere, and Lakehurst Joint Venture. Charles Gerwig, Janet’s husband, also filed suit against the above-named defendants. The jury returned a verdict in favor of both plaintiffs and against defendants Harriet Bruere, Inc., and Lance Bruere. The jury also returned a verdict in favor of Lakehurst Joint Venture and against both plaintiffs. This appeal pertains only to Lakehurst.

Plaintiffs’ complaint against Lakehurst is based upon the theory of negligence. Specifically, plaintiffs allege that Lakehurst did not adequately inspect the corridor during the business day and should have known of the grease spill.

At trial, plaintiff called Bruce Griffith, director of security at Lakehurst, as an adverse witness. Griffith was asked if there were closed circuit cameras in the mall, and he stated there were. Counsel for Lakehurst objected on the basis that the existence of cameras is irrelevant. The court overruled the objection. Griffith was later asked if provisions were made for placing grease drums inside the service corridor. He stated that there could not be anything in the corridor because it would be a safety hazard. Griffith was then asked if buckets or carts were provided by Lakehurst for the transportation of cooking grease from the restaurants to the dumpsters. He answered that he was not aware of these items being provided by Lakehurst. Griffith was next asked if there was cleaning equipment in that area of the mall. Counsel for Lakehurst objected, again arguing that this information was irrelevant. The court indicated that it would allow the evidence but would hear argument later to determine if the evidence was properly admitted.

On cross-examination, Griffith was asked by defendant Lakehurst what a security officer would do if he discovered a spill. Griffith responded by stating that, if it were a larger spill the security officer would call the control room and a housekeeper would be dispatched. If the housekeepers were busy, the officer would place “little horses that say ‘wet floor’ ” next to the spill.

On redirect, Griffith was asked to describe the “wet floor” signs. He did so and stated he was not aware if the tenants were informed of the existence of the signs or their location. Griffith also stated that the signs were for use by the housekeeping or security staff, not the tenants.

At the close of plaintiffs’ case, defendant Lakehurst made a motion for a directed verdict. The court denied the motion, stating there was a question of fact as to how long the grease was on the floor. The court went on to state that the complaint against Lakehurst alleges that the grease was on the floor long enough that Lakehurst should have known about it. Also, the failure to discover the grease was based upon a failure to conduct' inspections that would comply with ordinary care. With this in mind, the court informed counsel for all parties that it was going to instruct the jury to disregard the following evidence: the existence of closed circuit cameras in the hallway; the existence of grease receptacles in the service hall; the existence of special buckets or carts to move the grease; whether Lakehurst supplied cleaning equipment in the hall; and whether or not “wet floor” signs were made available to the tenants in case of spills.

The plaintiffs made an oral motion to amend their complaint to conform to the proof. Specifically, they wanted to add allegations stating that Lakehurst failed to perform the above acts. The court denied this motion to amend, stating that, as a matter of law, the acts complained of are not necessary to constitute reasonable care under the facts of this case.

The jury was instructed to disregard the above-mentioned evidence, and the jury returned a verdict in favor of defendant Lake-hurst and against the plaintiffs. Plaintiffs filed a post-trial motion that was denied, and this appeal followed.

There are two issues on review: first, did the trial court err in not allowing plaintiffs to amend their complaint to conform to the proof; and second, did the trial court err in striking certain testimony.

Plaintiffs contend that the trial court should have allowed them to amend their complaint to conform to the proof. However, plaintiffs did not present this contention to the trial court in their post-trial motion. Supreme Court Rule 366(b)(2)(iii) states:

“A party may not urge as error on review of the ruling on his post-trial motion any point, ground, or relief not specified in the motion.” (107 Ill. 2d R. 366(b)(2)(iii).)

The Illinois Supreme Court, in expressing its rationale behind this rule, stated:

“First, it allows the decision maker who is most familiar with the events of the trial, the trial judge, to review his decisions without the pressure of an ongoing trial and to grant a new trial if, on reconsideration, he concludes that his earlier decision was incorrect. [Citations.] Second, by requiring the statement of the specific grounds urged as support for the claim of error, the rule allows a reviewing court to ascertain from the record whether the trial court has been afforded an adequate opportunity to reassess the allegedly erroneous rulings. Third, by requiring the litigants to state the specific grounds in support of their contentions, it prevents them from stating mere general objections and subsequently raising on appeal arguments which the trial judge was never given an opportunity to consider. [Citations.] The rule *** has the salutary effect of promoting both the accuracy of decision making and the elimination of unnecessary appeals.” Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 349-50.

Plaintiffs did not include in their post-trial motion their argument for amendment, and, therefore, the issue is waived and not properly before this court.

The second issue to be considered is whether the trial court abused its discretion in striking certain portions of Bruce Griffith’s testimony and instructing the jury to disregard it.

In discussing its decision to strike the testimony, the court stated:

“I am going to instruct the jury to disregard evidence that was previously allowed in, as far as the existence or non-existence of closed circuit cameras in the hallway, as to whether or not there were grease receptacles in the service halls, as to whether or not there were special buckets or carts to move the grease supplied by Lakehurst, whether or not there was cleaning equipment kept in the halls by Lakehurst, and as to whether or not signs were made available to the tenants to use in case of spills. I will tell them to disregard that.
The issues that I think should properly go to the jury are notice of the existence of the spill and the inspection issue.”

It is apparent from the record that the court felt this testimonial evidence was irrelevant to the allegations set forth in plaintiff’s second amended complaint.

It is within the trial court’s discretion to determine if particular evidence is irrelevant. (Benson v. Bradford Mutual Fire Insurance Corp. (1984), 121 Ill. App. 3d 500, 510; Kyowski v. Burns (1979), 70 Ill. App. 3d 1009, 1018.) A reviewing court will not disturb the trial court’s ruling absent a clear abuse of discretion. (Benson, 121 Ill. App. 3d at 510; Kyowski, 70 Ill. App. 3d at 1018.) If certain evidence tends to establish that a necessary fact is more or less probable, then it is relevant. (Benson, 121 Ill. App. 3d at 510.) The court should apply the evidence to the factual issues raised in the pleadings to determine if the evidence is relevant. (Carlyle v. Jaskiewicz (1984), 124 Ill. App. 3d 487, 496.) Excluding testimony which does not pertain to the specific issues under consideration is not error. Carlyle, 124 Ill. App. 3d at 496.

We begin our analysis by looking at the general nature of the cause of action and the specific allegations presented in plaintiff’s second amended complaint. Plaintiff’s complaint is brought against a property owner for negligence. Specifically, as against Lakehurst, plaintiffs allege:

“12. These defendants knew that Peddler’s Beer, Brats & Spuds and other restaurants used the hall where Plaintiff Janet Gerwig fell to transport, on a regular basis, grease, food products, and other materials.
13. These defendants knew that the floor of this hall had debris on it at various times during the business day.
14. Defendants had no policy to inspect this hall periodically during the business day, and it was not so inspected.”

The trial court found, and we agree, that the issues that arise out of this complaint are whether Lakehurst should have known of the grease spill and whether Lakehurst properly inspected the corridor.

An owner/operator of a business establishment owes a business invitee “the duty of exercising ordinary care in maintaining the premises in a reasonably safe condition.” (Olinger v. Great Atlantic & Pacific Tea Co. (1961), 21 Ill. 2d 469, 473; Fravel v. Morenz (1986), 151 Ill. App. 3d 42, 45.) “[A] proprietor will be held liable for injuries sustained as a result of falls on his premises caused by slipping on a foreign substance when the substance is placed there by the negligence of the proprietor or his servant or if the substance was in place a sufficient length of time so that it reasonably should have been discovered.” (Fravel, 151 Ill. App. 3d at 45, citing Hayes v. Bailey (1980), 80 Ill. App. 3d 1027.) It is not necessary for the plaintiff to show that the owner had actual knowledge of the dangerous condition. (Chapman v. Foggy (1978), 59 Ill. App. 3d 552, 555.) If, in the exercise of ordinary care, the owner could have discovered the condition, he may be held liable. (Chapman, 59 Ill. App. 3d at 556.) We now look to the conduct of the trial court in striking the testimony of Bruce Griffith.

In reviewing the stricken testimony and applying it to the legal and factual issues raised in the pleadings, we find that the trial court did not abuse its discretion in determining that the evidence was irrelevant. The existence of grease receptacles in the service halls has no bearing on whether Lakehurst had notice that there had been a grease spill or whether or not Lakehurst had properly inspected the hallway. Likewise, the existence of special carts or buckets to transport grease, the existence of closed circuit cameras, the existence of cleaning equipment, and whether or not Lakehurst had informed the tenants of the existence of “wet floor” signs sheds no light on whether Lakehurst had notice or exercised reasonable care to discover the grease spill. Since the questioned testimony of Griffith is irrelevant to the legal and factual allegations raised in the pleadings, the trial court did not abuse its discretion in striking the testimony.

Plaintiffs contend that Lakehurst elicited the testimony about the “wet floor” signs and, therefore, cannot move that it be stricken. Also, plaintiff argues that the court should not have stricken testimony to which Lakehurst made no objection. After a review of the report of proceedings, it neither appears that Lakehurst elicited the irrelevant testimony about the signs nor failed to object to the irrelevant evidence.

Even if this court found that the trial court erred in excluding the testimony, reversal of the court’s decision is not automatic. This court has recently held that unless it can be established that an evidentiary ruling was substantially prejudicial and affected the outcome of the trial, the jury verdict will not be reversed. (People v. Sequoia Books, Inc. (1988), 172 Ill. App. 3d 627, 639; Cairns v. Hansen (1988), 170 Ill. App. 3d 505, 511.) The burden of establishing prejudice is on the party seeking reversal. Cairns, 170 Ill. App. 3d at 511, citing Greene v. Rogers (1986), 147 Ill. App. 3d 1009, 1019.

Plaintiffs claimed that they were prejudiced by the court’s rulings because they could not point out to the jury certain things that the defendants could have done to prevent this injury. The jury was given proper instructions with respect to the applicable standard of care and returned a verdict in favor of defendant. We do not see how a laundry list of things that could have been done would have affected the outcome. Plaintiffs have not sustained their burden of establishing prejudice or that the outcome would have been different had the evidence been allowed. Therefore, we cannot disturb the jury’s verdict. The decision of the circuit court of Lake County is affirmed.

Affirmed.

DUNN and LINDBERG, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
    PEORIA ROOFING AND SHEET METAL COMPANY, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Timothy J. Farmer, Appellant).
    Third District (Industrial Commission Division)
    No. 3—88—0069WC
    Opinion filed April 12, 1989.

      Kevin M. Miller, of Goldsworthy, Fifield & Hasselberg, of Peoria, for appellant.
    Louis G. Astaves and August M. Mangoni, of August M. Mangoni, Ltd., both of Chicago, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The parties agree that the petitioner-appellant, Timothy J. Farmer, was injured in a compensable accident during his employment with the respondent-appellee, Peoria Roofing and Sheet Metal Company. The Industrial Commission (Commission) awarded temporary total disability benefits under the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). The circuit court reversed the Commission’s calculation of the petitioner’s average weekly wage (wage). This appeal concerns only the wage calculation.

The petitioner roofer was injured on November 4, 1986. The petitioner testified that he began working for the respondent nine years prior to the accident. In the 52 weeks preceding his accident, he had worked solely for the respondent and he had considered himself a full-time employee. He had worked in 43 calendar weeks, a total of 134 days. He earned a total of $17,859.50; his latest hourly wage was $18.09.

Because of a strike, the petitioner did not work during 4 of the 52 weeks preceding his accident. He testified that of the other days he did not work, one he missed because of illness. The other days he did not work because the respondent had sent other workers rather than the petitioner. He acknowledged that the weather as well as his status as a nonforeman, non-family-member employee affected availability of his work.

In calculating the petitioner’s average weekly wage under section 10 of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.10), the Commission determined the petitioner’s average weekly wage for the year preceding the accident by dividing the petitioner’s total earnings for that year by one-fifth the number of calendar days in which he had worked that year. The circuit court reversed. The court recalculated the wage by dividing the petitioner’s earnings by the number of calendar weeks during which the petitioner worked at least one day.

Section 10 provides as follows:

“The compensation shall be computed on the basis of the ‘Average weekly wage’ which shall mean the actual earnings of the employee in the employment in which he was working at the time of the injury during the period of 52 weeks ending with the last day of the employee’s last full pay period immediately preceding the date of injury, illness or disablement excluding overtime, and bonus divided by 52; but if the injured, employee lost 5 or more calendar days during such period, whether or not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks and parts thereof remaining after the time so lost has been deducted. Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee actually earned wages shall be followed. Where by reason of the shortness of the time during which the employee has been in the employment of his employer or of the casual nature or terms of the employment, it is impractical to compute the average weekly wages as above defined, regard shall be had to the average weekly amount which during the 52 weeks previous to the injury, illness or disablement was being or would have been earned by a person in the same grade employed at the same work for each of such 52 weeks for the same number of hours per week by the same employer.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 48, par. 138.10.

The petitioner argues that the Commission properly interpreted the emphasized language of section 10 and determined his wage by dividing his year’s earnings by one-fifth the number of calendar days he worked in the year. He argues that the plain language of the statute unambiguously requires this approach. He similarly argues that the court’s interpretation ignores the section’s emphasized phrase “and parts thereof.” Also, he argues both that the Commission’s analysis here was consistent with the analysis the Commission used in several comparable cases and that the analysis comports with the Act’s purpose of protecting employees. Regarding the resulting “windfall,” the petitioner cites Hardin Sign Co. v. Industrial Comm’n (1987), 154 Ill. App. 3d 386, 506 N.E.2d 1066, asserting that the Act was intended to replace an injured worker’s lost earning power, not merely to project his probable loss of future income.

The respondent, on the other hand, argues that the legislature’s apparent intention in the emphasized section 10 was to calculate the petitioner’s wage by dividing his earnings by the number of calendar weeks (e.g., Sunday-through-Saturday periods) during which he had worked. It asserts both that the language of section 10 does not provide for creating “fictional weeks” (i.e., consolidated five-day groups of days worked), and that the language of section 10 should not be mechanically used to reach that result.

The parties properly focus on the emphasized section 10 provision which covers an employee who lost five or more calendar days of work in the 52 weeks preceding his accident. The later, alternative provision, which the respondent has also argued, covers employees with casual nature or terms of employment which make it impractical to compute the average weekly wage under the former provision. There are no such “casual nature or terms of the employment” here. Prior to his accident, the petitioner had worked for the respondent for many years. During the relevant year before the accident, the petitioner had worked for no one else. Also, the evidence suggests that although the availability of work varied, the respondent was able to depend upon the petitioner for full-time, not merely part-time, work. That work was of the construction type, a type historically covered by the Act’s special wage calculation. See Illinois-Iowa Blacktop, Inc. v. Industrial Comm’n (1989), 180 Ill. App. 3d 885.

With attention to the emphasized language, therefore, we are presented the question of whether the Commission complied with section 10 and properly considered the evidence in determining the petitioner’s average weekly wage. Assuming compliance with section 10, the Commission’s wage determination is a question of fact which a court must not set aside unless it is contrary to the manifest weight of the evidence. Smith v. Industrial Comm’n (1988), 170 Ill. App. 3d 626, 525 N.E.2d 81.

The following basic law underlies this case. Where the language of a statute is certain and unambiguous, the only legitimate function of the court is to enforce the law as enacted by the legislature. (Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 256 N.E.2d 758.) Further, each word, clause, or sentence of a statute must not be rendered superfluous, but must if possible be given some reasonable meaning. (Kozak v. Retirement Board (1983), 95 Ill. 2d 211, 447 N.E.2d 394.) However, when there is an ambiguity in the statutory language, the goal of statutory construction is to ascertain the legislative intent. (See In re Marriage of Freeman (1985), 106 Ill. 2d 290, 478 N.E.2d 326.) We consider this law with the premise that the Workers’ Compensation Act should be liberally construed to effect its main purpose of providing financial protection for interruption or termination of a worker’s earning power. Hardin Sign Co. v. Industrial Comm’n (1987), 154 Ill. App. 3d 386, 506 N.E.2d 1066.

The respondent’s interpretation of the emphasized section 10 language strains the plain meaning of the phrase “and parts thereof.” It effectively equates all calendar weeks during which the petitioner did any work, regardless of how many days he worked during the week. Whereas one day is, in fact, only a fraction of a work week, the respondent would seek to have one isolated day in a calendar week regarded as a “week,” not as a fractional “part thereof.”

Also, under the respondent’s analysis, section 10’s provision for employees who “lost 5 or more calendar days” is superfluous except for employees who “lost” full calendar weeks of employment. Under the respondent’s analysis, any employee who “lost 5 or more calendar days,” but nonetheless worked in every calendar week, would have his average wage calculated based on a 52-week year, just as under the initial provision of section 10.

As the respondent observes, the Commission’s construction of section 10 results in a “windfall” to some claimants, including the petitioner. Under it, a claimant’s award is calculated upon his average weekly earnings during the weeks he worked; it is paid throughout the full year, although the petitioner would not have been expected to work throughout the full year. That fact, however, is not fatal. Section 10 as written allows a windfall in some cases; it recognizes a qualified employee’s loss of future earning ability. See Illinois-Iowa Blacktop, 180 Ill. App. 3d 885; McCartney v. Industrial Comm’n (1988), 174 Ill. App. 3d 213.

Liberally construing the Act to effect its underlying purpose of providing financial protection for a worker's earning power, and giving the Act’s full language its reasonable meaning (see Hardin, 154 Ill. App. 3d at 389), we find that in setting the petitioner’s average weekly wage, the Commission complied with section 10. Furthermore, we do not find the calculated amount to be against the manifest weight of the evidence. Although the Commission calculated the petitioner’s number of work weeks by determining one-fifth of his number of work days, rather than one-seventh the number of his work days (compare Smith, 170 Ill. App. 3d at 629), there is no evidence, of customary work weeks or otherwise, which is a basis to disturb the calculation.

Accordingly, we reverse the decision of the circuit court of Peoria County and reinstate the order of the Commission.

Reversed.

McNAMARA, WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.


text:
    THERESA ANTUNES, Indiv. and as Special Adm’r of the Estate of Deborah Jewell, Deceased, Plaintiff, v. SAMERNG SOOKHAKITCH et al., Defendants (Samerng Sookhakitch, Third-Party Plaintiff and Counterdefendant; Pap Smear Center, Inc., Third-Party Defendant and Counterplaintiff and Third-Party Plaintiff-Appellant; Wilfredo Granada, Third-Party Defendant-Appellee; Frank Sun, Third-Party Defendant-Appellee).
    Second District
    Nos. 2—88—0666, 2—88—0668 cons.
    Opinion filed March 29, 1989.
    — Rehearing denied May 16, 1989.

      J. Robert Geiman, J. Jonathan Regunberg, and Paulette J. Cusick, all of Peterson, Ross, Schloerb & Seidel, of Chicago (David J. Novotny, of counsel), for appellant.
    Francine J. Aren, of Wildman, Harrold, Allen & Dixon, of Chicago (Ruth E. VanDemark, of counsel), for appellee Wilfredo Granada.
    Louis W. Brydges, Sr., of Brydges, Riseborough, Morris, Franke & Miller, of Waukegan (Leslie A. Peterson, of counsel), for appellee Frank Sun.
   JUSTICE McLAREN

delivered the opinion of the court:

Third-party plaintiff, Pap Smear Center, appeals from the trial court’s orders dismissing its third-party complaints. The complaints sought contribution from Dr. Frank Sun and Dr. Wilfredo Granada. The trial court determined that both of these complaints were barred by the statute of limitations. We reverse and remand.

Decedent, Deborah Jewell, filed a complaint in the circuit court of Lake County on April 7, 1981, alleging the medical malpractice of Dr. Samerng Sookhakitch. Decedent alleged that Dr. Sookhakitch, a gynecologist, was negligent in his care and treatment of her from May 25, 1979, through June 16, 1980. On August 26, 1981, Deborah Jewell died. In February 1983, plaintiff, Theresa Antunes, was appointed special administrator of the Jewell estate. Plaintiff voluntarily dismissed the original complaint on April 2, 1984, and refiled this suit on April 1, 1985, pursuant to section 13 — 217 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 217). The refiled complaint named Dr. Sookhakitch as the sole defendant. On December 11, 1986, Dr. Sookhakitch filed a third-party complaint seeking contribution from Pap Smear Center pursuant to the Illinois Contribution Among Joint Tortfeasors Act (Contribution Act) (Ill. Rev. Stat. 1985, ch. 70, par. 301 et seq.). Pap Smear Center filed a motion to dismiss the complaint based on the statute of limitations. The court denied the motion and also denied Pap Smear Center’s motion for reconsideration.

On March 30, 1987, plaintiff amended her complaint to include Pap Smear Center as a direct defendant. Pap Smear Center moved to dismiss the amended complaint for failure to bring the negligence action within the two-year statute of limitations period. The trial court granted the motion. On September 10, 1987, plaintiff filed a second amended complaint, naming Pap Smear Center as a defendant on a 'wrongful death count on behalf of decedent’s minor child.

On November 23, 1987, Pap Smear Center filed a third-party complaint seeking contribution from decedent’s treating physicians, Dr. Sun and Dr. Granada. Dr. Sun filed a motion to dismiss the complaint on the ground that the statute of limitations barred the action. The trial court granted the motion. The court also granted Dr. Granada’s motion for summary judgment based on the same ground. The trial court further ordered that there was no just reason to delay enforcement or appeal pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). This appeal followed.

On appeal, Pap Smear Center contends that the trial court improperly dismissed its third-party complaints against both treating physicians because Pap Smear Center has a statutory right to contribution from these physicians.

Section 13 — 212 of the Code of Civil Procedure (Malpractice Act) (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212), pursuant to which the third-party complaint was dismissed, provides:

“(a) Except as provided in Section 13 — 215 of this Act, no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.
(b) Except as provided in Section 13 — 215 of this Act, no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 8 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death where the person entitled to bring the action was, at the time the cause of action accrued, under the age of 18 years; provided, however, that in no event may the cause of action be brought after the person's 22nd birthday. If the person was under the age of 18 years when the cause of action accrued and, as a result of this amendatory Act of 1987, the action is either barred or there remains less than 3 years to bring such action, then he or she may bring the action within 3 years of July 20, 1987.” Ill. Rev. Stat. 1987, ch. 110, pars. 13— 212(a), (b).

Pap Smear Center contends that section 13 — 212 is inapplicable to its third-party contribution action. Pap Smear Center argues that its third-party claim was for contribution only, and thus the only applicable limitations provision is found in section 13 — 204. Section 13 — 204 provides:

“No action for contribution among joint tortfeasors shall be commenced with respect to any payment made in excess of a party’s pro rata share more than 2 years after the party seeking contribution has made such payment towards discharge of his or her liability. (III. Rev. Stat. 1987, ch. 110, par. 13 — 204.)

In addition to section 13 — 204, Pap Smear Center asserts that the lili-nois Supreme Court has already ruled on when a contribution action must be filed to be considered timely. In Laue v. Leifheit (1984), 105 Ill. 2d 191, the court held that if there is a pending action, the party seeking contribution must file a counterclaim or third-party action in that action. (Laue, 105 Ill. 2d at 196.) The failure to do so will result in the counterclaim or third-party action being time barred. The court determined that this holding was necessary to avoid overcrowding the court system with a multiplicity of lawsuits and to reduce the possibility of inconsistent verdicts. 105 Ill. 2d at 197.

Both third-party defendants contend that the Laue decision does not control the case at bar. Dr. Granada contends that the Laue decision did not establish a specific time limit for a party to file a contribution action. Instead, Laue only bars all contribution actions filed after a pending lawsuit has concluded. Dr. Granada concludes that Laue did not hold that all contribution actions brought during a pending lawsuit are timely filed.

Dr. Sun argues that there was no specific statute governing the cause of action in Laue. The complaint in Laue was based on negligence for the damages sustained as the result of an automobile collision. Dr. Sun argues that our case involves an allegation of medical malpractice and is thus controlled by the Malpractice Act. In addition, Dr. Sun argues that, in our case, the trial court ruled that the specific limitations provisions of the Malpractice Act govern the case, as opposed to the Laue decision in which the court had to rely upon the general provisions of the Contribution Act.

As we previously indicated, this case involves two separate and distinct complaints. The original complaint, filed by plaintiff, sought damages for alleged medical malpractice. It was thus proper for the trial court to apply the malpractice limitations provisions to the original complaint. However, Pap Smear Center’s third-party complaint did not seek damages for alleged medical malpractice. The third-party complaint only sought contribution from potential joint tort-feasors. The third-party complaint was not based on the Malpractice Act, but instead was based on the Contribution Act. We believe it was error to apply the limitations provisions of the Malpractice Act to a complaint which was based solely on the Contribution Act.

Both third-party defendants rely upon Hartford Fire Insurance Co. v. Architectural Management, Inc. (1987), 158 Ill. App. 3d 515, for the proposition that the Contribution Act limitations provision (see Ill. Rev. Stat. 1987, ch. 110, par. 13 — 204) is not applicable in medical malpractice litigation. In Hartford Fire, an action was filed against the architects of a school for negligence in the design and construction of the school. The architects filed third-party actions against two engineering firms associated with the construction of the school. The engineers filed motions to dismiss the third-party actions on the ground that the contribution actions were not timely filed. The trial court granted the motions, and the appellate court affirmed. (158 Ill. App. 3d at 516-17.) The appellate court held that the third-party actions were governed by the provisions of the specific statute relating to the construction industry, and not by the general Contribution Act. (158 Ill. App. 3d at 518.) The appellate court went on to note that the limitations provision in section 13 — 204 only bars contribution actions filed more than two years after a joint tort-feasor has made a payment. It does not state that all contribution actions filed within the two-year period are timely filed. 158 Ill. App. 3d at 518.

We do not believe the reasoning of the Hartford Fire decision is persuasive in the case at bar. In Hartford Fire, the counterclaim for contribution was filed nearly four years after the original action was filed. (158 Ill. App. 3d at 520-21.) That filing occurred nearly two years after the repose period in section 13 — 214(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 214(b)) had expired. However, in our case, Pap Smear Center filed its third-party complaint for contribution approximately two months after it was named as a defendant in the original action. In addition, the repose period in section 13 — 212(b) (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 212(b)) had yet to expire with respect to the decedent’s minor child’s cause of action against the two physicians, unlike the situation in Hartford Fire. Pap Smear Center filed its third-party complaint within a reasonable amount of time after being named a defendant in the original action, thus avoiding the problems associated with lengthy delays like those present in Hartford Fire. The Hartford Fire court relied on the third-party plaintiffs’ delay in bringing the contribution action in reaching its decision that the contribution action was time barred. (158 Ill. App. 3d at 521.) It is undisputed that Pap Smear Center, unlike the third-party plaintiff in Hartford Fire, did not delay in bringing its third-party action for contribution. Thus, we believe that the trial court improperly relied upon Hartford Fire in dismissing Pap Smear Center’s third-party action.

Dr. Granada notes that the reasoning in Hartford Fire was recently adopted in another appellate court opinion. In La Salle National Bank v. Edward M. Cohon & Associates, Ltd. (1988), 177 Ill. App. 3d 464, the Appellate Court for the First District reaffirmed its position that the term “otherwise” in section 13 — 214 (“action based upon tort, contract, or otherwise”) includes complaints for contribution. (La Salle National Bank, 177 Ill. App. 3d at 472.) The court noted that the “otherwise” language was sufficiently broad to include all actions relating to the construction industry, including claims for contribution. 177 Ill. App. 3d at 472.

We do not believe that the legislature intended the word “otherwise” in section 13 — 212 to include contribution actions. In Desai v. Chasnoff (1986), 146 Ill. App. 3d 163, the court determined that “otherwise” referred only to medical malpractice claims not based upon tort or contract. (146 Ill. App. 3d at 167.) As we previously indicated, Pap Smear Center’s third-party complaint is not based on medical malpractice, but instead only sought contribution. Therefore, we believe the “otherwise” in section 13 — 212 has no application to contribution actions filed against potential joint tort-feasors who also happen to be physicians.

In addition, we believe that it is fundamentally unfair to not allow Pap Smear Center’s third-party complaint for contribution. This is especially true given the fact that, under the trial court’s rulings, Pap Smear Center never would be allowed to seek contribution from the two physicians. As we previously stated, the alleged negligent acts occurred in 1979 and 1980. However, Pap Smear Center was not made a defendant in this case until 1986. Thus, according to Drs. Sun and Granada, the statute of limitations under section 13 — 212 would prevent Pap Smear Center from bringing a contribution action long before Pap Smear Center became aware of its own potential liability. We believe the trial court’s ruling improperly denied Pap Smear Center the opportunity to seek contribution from these potential joint tort-feasors.

The right of contribution in Illinois was originally created by our supreme court in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1. In Skinner, the court held that there was no reason to permit the burden of a loss to fall upon one defendant, allowing an equally responsible defendant to go “scot free.” (70 Ill. 2d at 13.) The Illinois legislature relied upon Skinner and established a statutory right of contribution among two or more persons subject in tort to a plaintiff. (Ill. Rev. Stat. 1987, ch. 70, par. 302(a).) Section 302 of the Contribution Act provides, in pertinent part:

“[Wjhere two or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.” (Ill. Rev. Stat. 1987, ch. 70, par. 302(a).)

The purpose of the Contribution Act is to apportion liability for tor-tious conduct among those liable for the injuries. (Doellman v. Warner & Swasey Co. (1986), 147 Ill. App. 3d 842.) We believe that the trial court impermissibly cut off Pap Smear Center’s right to seek contribution from potential joint tort-feasors in this case.

A review of Pap Smear Center’s complaint clearly indicates that the third-party action is based solely on the Contribution Act. The third-party complaint merely alleged that both physicians’ liability for contribution, if any, arose from allegations of medical malpractice. Because the third-party complaint was an action for contribution, we believe that the limitations provisions of the Contribution Act control.

Dr. Granada also contends that the provisions of the Malpractice Act control over the Contribution Act because the Malpractice Act is the more specific of the two statutory provisions. Illinois courts have long followed the principle of statutory construction that specific statutory provisions control over general statutory provisions. (Village of Franklin Park v. Dickman (1988), 165 Ill. App. 3d 1012, 1014; McCann v. Lisle-Woodridge Fire Protection District (1983), 115 Ill. App. 3d 702, 711.) As far as a contribution claim is concerned, the specific statute governing the cause of action is the Contribution Act, which only applies to contribution actions against joint tort-feasors. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 204.) The general statutory provision is the Malpractice Act, which applies to any medical malpractice action, whether based upon tort, contract, or otherwise. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212(a).) We believe the specific provisions of the Contribution Act control Pap Smear Center’s third-party complaint for contribution.

We also do not agree with both doctors’ contentions that to allow Pap Smear Center’s third-party complaint for contribution would undermine the legislative goals in enacting the Malpractice Act. The legislature enacted the Malpractice Act to correct the perceived malpractice insurance crisis in this State. (Penkava v. Kasbohm (1987), 117 Ill. 2d 149, 155.) The legislature determined that a firm statute of limitations period was necessary to prevent the extended exposure of physicians and other hospital personnel to potential liability in medical malpractice actions. Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 240, 243-44 (Ryan, C.J., specially concurring).

We cannot perceive how the legislative goals of the Malpractice Act would be frustrated by allowing Pap Smear Center’s complaint for contribution. Pap Smear Center’s complaint does not seek damages for medical malpractice, but is instead based solely on an alleged right of contribution. As we previously indicated, the Malpractice Act deals strictly with medical malpractice actions and does not concern itself with other independent actions such as the contribution claim at issue in this case. Pap Smear Center is not suing Drs. Sun and Granada for their alleged medical malpractice, but instead is seeking contribution from potential joint tort-feasors. Thus, we believe the trial court erroneously applied the Malpractice Act to the third-party action when the action was not based on medical malpractice.

We also note in passing that applying the physicians’ argument that section 13 — 212 bars Pap Smear Center’s contribution action would often lead to illogical results. For example, had the plaintiff originally included Dr. Sun as a direct defendant in this case, Dr. Sun would be barred from seeking contribution from Dr. Granada or any other physician based on the limitations provision found in section 13— 212. This would place the plaintiff in the position of being able to determine which defendant would be subject to liability, and which defendant would go “scot free.” We believe this result is directly contrary to the holding in Skinner and would also frustrate the legislative intent in enacting the Contribution Act. Furthermore, it was not the intent of the Malpractice Act to bar one physician’s contribution action against another physician.

In addition, we also do not believe that, by allowing Pap Smear Center’s third-party complaint for contribution, the physicians are being exposed to an extended period of potential liability for their alleged malpractice. This is especially true given the fact that the decedent’s minor child still has time to file a direct medical malpractice action against each of the physicians. The trial court apparently disregarded the fact that the child’s cause of action tolled the limitations provisions found in section 13 — 212. Given the fact that the repose period of section 13 — 212 has yet to expire for the minor child’s cause of action, we cannot agree with the two physicians that we are exposing them to an extended period of malpractice liability by allowing Pap Smear Center’s contribution action. Both Drs. Sun and Granada still remain “subject to liability in tort” for the same alleged wrongful death as is alleged against Pap Smear Center. Thus, under section 2(a) of the Contribution Act, Pap Smear Center has an unequivocal statutory right of contribution against each physician.

For the above stated reasons, the orders of the circuit court of Lake County dismissing Pap Smear Center’s third-party complaints are reversed, and this cause is remanded for further proceedings consistent with this decision.

Reversed and remanded.

UNVERZAGT, P.J., and REINHARD, J., concur.