author: JUSTICE LINN

text:
    JOHN ENGEL, a Minor by his Mother and Next Friend, Donna Hultman, Plaintiff-Appellee and Cross-Appellant, v. CHICAGO & NORTH WESTERN TRANSPORTATION COMPANY, Defendant (The Chicago Park District, Defendant-Appellant and Cross-Appellee).
    First District (4th Division)
    No. 1—88—0074
    Opinion filed February 16, 1989.
    Rehearing denied August 24, 1989.

      Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Nancy Jo Arnold and Baker & McKenzie, of counsel), for appellant.
    Hofeld & Schaffner, of Chicago (Albert E Hofeld and Howard Schaffner, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

The minor plaintiff, John Engel, was severely injured when he jumped from a moving train. Following a jury trial, he was awarded $5 million in compensatory damages and $1.5 million in punitive damages. The trial court subsequently vacated the punitive damages award, on post-trial motion, but upheld the jury’s verdict as to liability and compensatory damages. Defendant Chicago Park District (District) appeals, contending that the risk of danger in climbing on and off a moving train is obvious and that defendant therefore had no legal duty to plaintiff. The Park District further argues that it did not receive a fair trial because the jury was angry and prejudiced against it, as indicated by the large award and the finding that Engel had zero contributory negligence for his injuries. Plaintiff cross-appeals from the trial court’s entry of judgment notwithstanding the verdict on the punitive damages award.

We affirm.

Background

John Engel was 12 years old on September 27, 1981. On that date he went to Hermosa Park in Chicago to play with his friends. The park is operated by the Chicago Park District. There are tennis courts, a playground, a playing field, and other recreational facilities. The entire park is fenced. Along the west side of the park are railroad tracks.

For at least two years prior to Engel’s injury the fence along the west side had a large opening that extended from the bottom to the top of the fence. Children and adults used this large hole in the fence as a short cut. Through this opening, children had direct access to the railroad tracks from the park. There was an embankment leading to the tracks, and railroad ties set in the embankment created a stairway up to the tracks.

The Park District failed to repair this large opening in the fence, despite its admitted knowledge of its existence and dangerous condition. Internal memoranda produced at trial established that the Park District considered the unrepaired fence as a safety hazard and that its personnel knew that children used the opening to gain access to the tracks. Work orders to repair the fence were produced, but for unexplained reasons, the opening was not repaired. At trial, one of the Park District’s witnesses claimed that repairs had been made, but no substantiation of that claim was produced, and, in fact, the opposite conclusion was proved by other testimony and evidence.

Testimony at trial also established that the practice of going up to the tracks through the opening in the fence was so prevalent at Hermosa Park that Park District employees frequently engaged in this conduct in plain view of the children in the park. In addition, park employees were aware that children took rides on passing trains. The practice of grabbing a short ride on slow-moving freight trains is called “flipping” the trains.

The engineer for the Park District testified that the open fence separating the park from the tracks created a “very dangerous” condition, one that would undoubtedly allow a child to get hurt if the condition existed for a long enough period of time. The District’s safety director also agreed that the condition presented a very dangerous situation.

One of the Park District’s employees testified that he had heard of children flipping the trains at Hermosa Park and may have actually seen this happen, but did not recall warning the children not to do this. Another witness, a child who frequently went to the park, testified that for years prior to the accident he had gone through the opening in the fence and boarded moving trains, as had others. A railroad employee testified that he had seen children trying to jump on and off almost every train that passed Hermosa Park.

Railroad employees also jumped on and off moving trains, as part of their job, and the children in the park observed this practice. The railroad would at times run brake tests at the park by stopping the trains and then restarting them while some employees were off the train. Once the railroad crew members who were off the train were satisfied that the trains were running properly, they would mount the moving train by jumping on either the side ladder or stairs of the moving railroad trains. Engel testified that he had observed the railroad crew do this without incident seven or eight times prior to his accident.

The Park District’s repair department had received work orders on eight occasions to fix the fence but these orders had never been approved and the work was never done. The orders started in March of 1980, and the last one was dated in August 1981, just six weeks before Engel’s leg was crushed beneath a train.

At trial the Park District attempted to show that the fence had been repaired. Testimony on that point was severely impeached, however, and there was substantial evidence to the contrary. Moreover, two sets of documents offered by the Park District appeared to be falsified. The first group of documents purported to be memos from the director of safety regarding repair of the fence. The director of safety whose name appeared on the memos, however, did not even work for the Park District at the time he allegedly wrote the memos.

The second group of documents were inspection reports prepared by Frank Barton, a safety inspector employed by the Park District. According to his testimony, he customarily prepared inspection reports on the day of the inspection, using a yellow legal pad. At the end of the day he tore the report off the pad and placed it in a file in the office. Each new report would be prepared outside of the office and then put in the file.

The six original Barton reports, which had not been produced prior to trial, appeared to have been prepared with the same pen, on the same pad, despite the fact that they supposedly had been prepared on different dates over a two-year period. The reports were examined by a documents examiner who noted that each sheet of paper contained impressions of writing as if from another sheet of paper that was on top. Using a special technique geared to raising legible copy from the impressions on the paper, the examiner deduced that the Barton report dated September 12, 1979, for example, had been written on top of the July 12, 1979, report because of the imprint left on the July 12 report. Yet according to its date, the September 12 report would not have been in existence on July 12. The other five original Barton reports contained similar imprints.

On the day that Engel was injured he had met some friends at the park. They decided to go to a nearby store for candy. From inside the park, the shortest route to the store was through the opening in the fence and over the railroad tracks. Engel noticed a train coming at a very slow speed. The train came to a stop and Engel waved to the conductor, who waved back. When the train started up again, Engel got on a ladder on the side of the train. At the time the speed of the train was four or five miles an hour. The speed limit in that area was 10 miles an hour.

Engel rode the train for approximately 30 feet and then alighted to join his friends. He had seen others getting on and off the moving trains, including the railroad employees. He attempted to mimic the way in which the men had jumped off the train. Instead, he got spun around and fell, his left leg going under the train. The first wheel crushed his leg and caused it to stick to the track. Twenty-five cars then ran over his leg while he was helpless to move it.

After Engel’s leg was surgically amputated in the hospital, the stump beat against the bed in uncontrollable spasms. He underwent repeated and painful skin grafts. He also underwent a lengthy and painful struggle to regain even limited use of his leg. The medical evidence indicates that he is in chronic pain and can walk only short distances on an artificial leg.

The jury returned a verdict in his favor, awarding him $5 million in compensatory damages and $1.5 million in punitive damages on the wilful and wanton misconduct count. The trial judge later vacated the punitive damages award on the ground that municipal corporations are immune from punitive damages awards.

Opinion

I

The Park District strenuously challenges its liability to Engel and argues that, as a matter of law, it owed him no duty to protect him from the obvious danger of climbing on the moving train. That being the case, Engel failed to state a cause of action and the matter should not have gone to the jury.

The Park District cites an impressive body of cases in which landowners were held to owe no duty to protect children from a variety of conditions on the basis of obvious danger. (E.g., Batzek v. Betz (1988), 165 Ill. App. 3d 399, 519 N.E.2d 87 (no duty to protect 14-year-old from obvious risks of falling out of tree); Christon v. Kankakee Valley Boat Club (1987), 152 Ill. App. 3d 202, 504 N.E.2d 263 (no duty to fence park to keep nine-year-old away from flooded dock area); Sampson v. Zimmerman (1986), 151 Ill. App. 3d 396, 502 N.E.2d 846 (no duty to protect four-year-old from a burning candle because danger of fire is one that should be understood by a child old enough to be allowed at large).) The Park District argues that since the dangers of hopping freight trains is obvious, an objective determination, judgment should have been entered in its favor as a matter of law.

Engel, on the other hand, distinguishes the instant case from those that may be categorized as representing universal life experiences that all children have at an early age. Hence, the policy determination that children are presumed to know the risks of falling from heights, drowning, or being burned is justified. (See Restatement (Second) of Torts §339, comment j, at 203 (1966); Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 326, 383 N.E.2d 177.) In contrast, other risks of injury should not be presumed to be in the knowledge or life experience of all children and should be individually assessed as questions of fact. In the pending case, Engel could not be presumed to have realized the dangers of flipping the train because he had seen others, including employees of the railroad, successfully mount and dismount the slow-moving trains. Therefore, it was for the jury to determine whether his injuries were proximately caused by the Park District’s breach of duty to him.

The Park District relies on several Illinois Supreme Court decisions to bolster its argument that it had no duty to Engel. In Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836, the court rejected the implication in the “attractive nuisance” doctrine that predicated liability on whether a dangerous condition had “lured” children onto the premises. Instead, the court found the cornerstone of liability to be foreseeability of harm to children. In Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 326, 383 N.E.2d 177, 180, the court reiterated the Kahn reasoning and noted that “a duty which would not be imposed in ordinary negligence will be imposed upon the owner or occupier of land only if such person knows or should know that children frequent the premises and if the cause of the child’s injury was a dangerous condition on the premises.” (Emphasis in original.) A dangerous condition was defined as one likely to cause injury to children because of their inability to appreciate the attendant risks, due to age and immaturity. The existence of such dangerous condition, plus the defendant’s knowledge of it, constitutes foreseeability. Corcoran, 73 Ill. 2d at 326.

In Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023, the court explained that this rule does not impose a per se duty upon landowners to remedy all conditions on the land and “if the condition complained of presents obvious risks which children would be expected to appreciate and avoid, there is no duty to remedy that condition.” (Emphasis in original.) (102 Ill. 2d at 286, 464 N.E.2d at 1027.) The court went on to state the rationale for the rule, that since children are expected to avoid obvious dangers, there is no reasonably foreseeable risk of harm. Therefore, if a danger is “obvious” it is not considered “foreseeable.” Cope v. Doe, 102 Ill. 2d at 286, 464 N.E.2d at 1027.

In the pending case there is no doubt from its admissions that the Park District knew that children frequented the area around the tracks and that the unfenced access from the park to the tracks presented a dangerous condition in the mind of safety engineers and inspectors for the district. The only remaining question on the issue of duty is whether the risks of flipping trains were “obvious” to the 12-year-old plaintiff, as a matter of law.

In La Salle National Bank v. City of Chicago (1985), 132 Ill. App. 3d 607, 478 N.E.2d 417, the nine-year-old plaintiff was severely injured after he hopped on a slow-moving freight train. The court affirmed a jury verdict in his favor despite the defendant city’s assertion that plaintiff should have known that hopping a moving train was dangerous as a matter of law. The city owned land adjacent to the railroad tracks and had built and maintained a fence thereon. Children gained access to the tracks through a large hole in it, a situation of which the city had knowledge. Following Kahn, the court found that the elements of liability had been satisfied. The city owed a duty, which it had breached, and the fact that the plaintiff was found to be 18% at fault for his injury did not establish a specific appreciation of risk in jumping moving trains. We find this case persuasive, notwithstanding the Park District’s suggestion that it was incorrectly decided.

Further support for Engel’s position is found in several other cases involving railroad injuries.

In American National Bank & Trust Co. v. Pennsylvania R.R. Co. (1964), 52 Ill. App. 2d 406, 202 N.E.2d 79, aff’d (1966), 35 Ill. 2d 145, 219 N.E.2d 529, a 13-year-old boy climbed a slow-moving train on his way to a playground which abutted the tracks. As in the instant case, children often cut through the park to the tracks. The boy sustained a traumatic amputation of his leg as he alighted from the train and fell beneath it. Both the appellate and supreme courts affirmed the jury’s verdict for the plaintiff, albeit on different theories of liability. The supreme court based its affirmance on defendant’s negligent operation of the train, but specifically commented that the question of the boy’s contributory negligence was properly left to the jury, who was to evaluate the age, capacity, intelligence, and experience of the child. 35 Ill. 2d at 153, 219 N.E.2d at 533.

In Dickeson v. Baltimore & Ohio Chicago Terminal R.R. Co. (1969), 42 Ill. 2d 103, 245 N.E.2d 762, evidence established that children customarily “flipped” rides on the slow-moving freight trains and that the railroad that owned and maintained the premises knew of this fact. In affirming the jury’s verdict in favor of the 14-year-old plaintiff, the supreme court held that the issue of a child’s contributory negligence when climbing a slowly moving train is a question of fact. By necessary implication, the verdict for the plaintiff meant that he did not truly appreciate the risk of injury. See also Pellegrini v. Chicago, Rock Island & Pacific R.R. Co. (1980), 91 Ill. App. 3d 1091, 415 N.E.2d 615 (appellate court reversed the trial court’s entry of summary judgment on behalf of the defendants, holding that jury should have decided whether 13-year-old boy who was injured after attempting to board a slow-moving train was contributorily negligent); but cf. LeBeau v. The Pittsburg, C., C. & St. L. Ry. Co. (1897), 69 Ill. App. 557, 560 (finding that jumping from a moving freight train is dangerous and that all men and ordinarily intelligent 10-year-old boys know it to be so).

We find a sufficient basis in Illinois law to uphold the submission of the instant case to the jury. Moreover, we disagree with the Park District’s contention that the above-cited train-flipping cases are either distinguishable or inapposite. Although the Park District labels the train-flipping “line of cases” as an exception to the general principles of landowner liability, we do not agree. The main reason the case cannot be determined as a matter of law is that the “obviousness” of the danger is not such that no minds could reasonably differ. The policy determination that most children are presumed to know the risks of injury inherent in certain types of activities, such as playing with fire or playing in bodies of water, does not per se extend to the train-flipping cases. Under different facts than are present in this case, however, a judge could find that the danger was obvious to a plaintiff or that the landowner was unaware of the condition and find no duty existed as a matter of law.

The duty in this case was repairing the fence to prevent access to the trains from the park. The Park District admitted its awareness of the children’s use of the hole in the fence to go up to the tracks and its belief that the situation was dangerous. We find that the evidence amply supports the jury’s conclusion that the Park District breached its duty to repair the fence and that Engel’s injuries were proximately caused by that breach. Accordingly, we affirm the jury’s verdict and award of compensatory damages.

II

Next, the Park District urges us to reverse and remand this case for a new trial on the grounds that the jury was prejudiced against it. In support of this contention it primarily relies on the size of the damages award and the fact that the jury did not find Engel comparatively negligent.

The Park District maintains that the jury’s refusal to hold Engel responsible for any percentage of negligence is against the manifest weight of the evidence. The Park District cites Engel’s good to average grades in school and his having been near or on the trains many times as indicative of his ability to appreciate the risks involved in flipping trains. For supporting authority the District cites cases from other jurisdictions that ruled on the dangers of trains as posing obvious risks, as a matter of law. Since we have already rejected the argument that the danger in this case was “obvious,” under the analysis of duty, these cases do not aid us on the manifest weight of evidence issue. Moreover, we find that the jury was the proper entity to assess all of the evidence, including Engel’s age, intelligence, and experience. Since in his experience many children and adults had hopped the trains without injury, the jury could have concluded he had no true appreciation of the risks involved. We will not reweigh the evidence or substitute our judgment for that of the jurors.

For similar reasons we will not vacate the damages award. While $5 million is indeed a substantial sum, the Park District does not claim that there is nothing in the record to support it. Nor does the Park District suggest what sum it believes would be reasonable compensation for Engel’s medical expenses, loss of future income, pain and suffering, and disability and disfigurement. Instead, the Park District claims that the award was out of line with other comparable cases and that it was “fueled” by the jury’s anger toward the Park District.

Ironically, the anger that the Park District now argues deprived it of a fair trial grew out of its presentation of apparently fabricated documents and untrue testimony as to the repairs made to the fence in Hermosa Park. If the jury believed that it had been lied to, and the record supports this possibility, it is hardly surprising that the jurors may have become angry. While a defendant’s possible perjury at trial does not translate into a proper basis for a jury’s award of compensatory damages to a plaintiff, it does suggest that the cause of the jury’s “inflamed passions” was not plaintiff’s doing, but defendant’s. In any event, because the punitive damages count was also submitted to the jury, they were given an outlet to “punish” the Park District. The compensatory award, therefore, stands on its own. See Stein v. Burns International Security Services, Inc. (1981), 102 Ill. App. 3d 776, 430 N.E.2d 334.

Ill

As its final argument, the Park District challenges what it characterizes as “surprise expert testimony,” incomplete impeachment of one of its witnesses, and erroneous instructions.

Mr. Hayes, a forensic document examiner, was retained by plaintiff’s counsel after counsel began to suspect that the original Park District memos prepared by Frank Barton had been prepared all at one time, on one pad, with the same pen, even though they bore dates spanning two years. All experts had been barred pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220), since none had been disclosed before trial. Nevertheless, plaintiff’s attorney successfully argued that he had never received the original, suspicious documents, nor had he been allowed to examine them until trial, despite discovery requests. Therefore, he did not know he would need a document examiner until he saw the originals at trial.

The Park District contends that it was unfairly surprised by this witness’s testimony.

We cannot agree. The court considered both parties’ arguments and decided that Hayes could testify subject to limitations that would keep him from giving an expert opinion. The Park District was given the opportunity to depose him before his testimony. Under these circumstances, the trial court did not abuse its discretion. See generally Sherman v. City of Springfield (1969), 111 Ill. App. 2d 391, 250 N.E.2d 537.

Finally, we have reviewed the challenged instructions and do not find error of sufficient magnitude to reverse this cause for a new trial. Most of the challenged instructions, we believe, were proper and correct. The punitive damages instructions should not have been given, for reasons discussed below, but any error resulting was harmless. On the whole, we find that the instructions in this case accurately instructed the jury on the law.

We conclude that the trial court’s entry of judgment on the jury’s verdict in favor of Engel should be affirmed as to liability and compensatory damages.

IV

On Engel’s cross-appeal, he argues that the trial court improperly set aside the jury’s award of $1.5 million dollars in punitive damages. Although he makes a complex argument based on the Park District’s supposed waiver of immunity through purchase of insurance, we need not discuss it in detail because we find, as a matter of law, that the Park District as a municipal corporation is immune from punitive damages awards and has not waived such immunity.

At common law, municipal corporations have long been held immune from punitive damages awards on the ground that it would be the taxpayers who pay the penalty, not the entity itself; therefore, the objective of punishment and deterrence would be obviated. See George v. Chicago Transit Authority (1978), 58 Ill. App. 3d 692. 694-95, 374 N.E.2d 679, 680-81.

Under the provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Act) in effect at the time of Engel’s injury, “a local public entity [was] not liable to pay punitive or exemplary damages in any action brought directly against it by the injured party.” (Ill. Rev. Stat. 1981, ch. 85, par. 2 — 102.) The Act further provided, however, that when a public entity purchased liability insurance covering a liability for which the Act had created a defense, the insurance company could not assert the public entity’s immunity or other defenses as a means of avoiding payment under its policy. (Ill. Rev. Stat. 1981, ch. 85, par. 9 — 103(c).) The Act has since been amended in several key respects. See Ill. Rev. Stat. 1987, ch. 85, pars. 2 — 102, 9 — 103(c).

According to Engel, punitive damages liability will lie against a municipal corporation “if the defendant is insured for that risk,” citing Holda v. County of Kane (1980), 88 Ill. App. 3d 522, 410 N.E.2d 552, and Collins v. School District No. 189 (1983), 115 Ill. App. 3d 100, 450 N.E.2d 387. Thus, any immunities under the Act are waived if the municipality is insured for the specific risk under consideration. The reason Engel gives is that while a municipality should benefit from the immunities given in the Act, an insurance company should not.

We note that the Act has been amended so as to allow insurance companies to use the same immunities as the municipalities they insure. (Ill. Rev. Stat. 1987, ch. 85, par. 9 — 103(c).) Under current law, Engel’s theory would fail. Even under the law as it existed at the time of Engel’s action, however, we cannot agree with his argument. The Park District itself had immunity from the claim under the Act. Its general liability insurance policy admittedly does not include or explicitly exclude punitive damages. Unless we construe the absence of an exclusion for punitive damages in the policy as a positive statement of coverage for punitive damages, the immunity has not been waived.

We find no waiver of the immunity has occurred. In the cases Engel cites, such as Holda and Collins, the courts did not state that the mere purchases of insurance waived the immunity. At best, they state that the immunity is not waived unless the insurance policy covers the specific risk under consideration. In this case that is the specific risk of a punitive damages award. General liability coverage as defined in the policy is not enough.

The trial court apparently believed that the policy could be construed as insuring against punitive damages. However, it dismissed the punitive damages count on the public policy ground that one cannot insure himself against punitive damages because he may not be allowed to escape economic punishment for his wrongful acts. (Beaver v. Country Mutual Insurance Co. (1981), 95 Ill. App. 3d 1122, 420 N.E.2d 1058.) Engel argues that a corporation may insure itself against damages, however, if its liability is truly vicarious and not the result of its own corporate acts. See Scott v. Instant Parking, Inc. (1969), 105 Ill. App. 2d 133, 245 N.E.2d 124 (employer may insure himself against vicarious liability for punitive damages incurred as a result of employee’s wrongful acts); cf. Mattyasovszky v. West Town Bus Co. (1975), 61 Ill. 2d 31, 330 N.E.2d 509.

We need not address this issue further because a private corporation, unlike a municipal corporation, does not have a statutory immunity. The immunity was intended, presumably, to protect the taxpayers’ money. If a private corporation is assessed punitive damages for its own acts it must pay out of corporate funds. Insurance is not available for the punitive damages award in that situation for the public policy reasons cited above. Whether or not insurance would be available if the corporation established that it was liable only vicariously, through the acts of an employee or agent who was not a corporate officer, is not at issue in this appeal. Because we have determined that the Park District’s purchase of liability insurance has not waived its immunity from punitive damages, we affirm the trial court’s dismissal of the punitive damages count and its vacation of the jury’s verdict on that count.

Accordingly, we affirm the trial court on both the main and cross appeals.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.

       As the Park District points out, there is a distinction between punishment for wilful and wanton acts or omissions in relation to the tort itself and punishment for perjury during trial. The former is a proper base for imposition of punitive damages by a jury, while perjury may be separately punished by contempt or a criminal proceeding. (Amerco Field Office v. Onoforio (1974), 22 Ill. App. 3d 989, 317 N.E.2d 596.) Since the punitive damages award has been vacated, however, we need not determine whether it would have been a proper award on any basis.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
      In re CARLENN H., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Cynthia H., Respondent-Appellant).
    First District (3rd Division)
    No. 1—86—2466
    Opinion filed August 2, 1989.

      John S. Elson, of Northwestern University Legal Clinic, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and Janet C. Mahoney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

The subject of this appeal is an order entered by the circuit court of Cook County for the adjudication of wardship and appointment of a guardian on behalf of a minor, Carlenn H. The circuit court found that the minor’s mother, respondent Cynthia H., allowed a sex offense to be committed against her, and that the environment was injurious to her welfare. On appeal, respondent contends that the petition for adjudication of wardship failed to state a cause of action and that it failed to properly invoke the jurisdiction of the court. The respondent also contends that the court’s finding that the child was abused was against the manifest weight of evidence, and that the trial court’s finding that the minor’s environment was injurious to her welfare was improper because it was based on evidence relating to sexual abuse.

Carlenn was nine years old at the time of the adjudicatory hearing and was the only person to testify. She testified that she previously resided on South Ada Street in Chicago with respondent and respondent’s boyfriend, Michael Atkins. Carlenn stated that Atkins lived with them for three years beginning in 1983, but later testified that he came to the house in the autumn of 1985. Carlenn stated that Atkins entered her bedroom almost every night for approximately one year and subjected her to various forms of sexual activity, including fellatio and sexual intercourse. According to Carlenn, respondent was in another room of the house during these incidents. Carlenn also testified that Atkins threatened to kill her if she told anyone about the sexual activity.

Carlenn initially reported the incidents to respondent’s friend whose only response was that it was “a shame.” Carlenn stated that she eventually told respondent about the sexual activity but could not remember exactly when she spoke to respondent or her friend. Carlenn did say that she reported the incidents to respondent several times because she did not think that respondent believed her. The last person to whom Carlenn spoke was her aunt who, after being told about the sexual incidents on three separate occasions, contacted authorities.

On cross-examination, Carlenn stated that she did not report the incidents to respondent until March 1986, the date of her removal from the home. She later testified that she spoke with respondent about the sexual activity before she was taken from the respondent’s custody. Carlenn acknowledged that she did not remember the exact time period, but knew that she had repeatedly told respondent of the abuse before reporting it to her aunt.

Following Carlenn’s testimony and the admission of the medical record of her physical examination, the court made its findings. The court found that Carlenn was sexually abused and that respondent had allowed a sexual offense to be committed against her. The court based its findings on Carlenn’s testimony and the inferences drawn therefrom, particularly the testimony that the sexual activity occurred in the respondent’s home on a daily basis for approximately one year.

Following the finding of sexual abuse, a dispositional hearing was conducted. Theotis Lockett, a social worker for the Department of Children and Family Services, testified as to the recommendations of the therapists who had been counseling respondent and Carlenn. Their recommendation was that Carlenn not be returned to respondent’s custody because Atkins was living with respondent, respondent did not believe that Atlkins had sexually abused her daughter and Carlenn was afraid to return home while Atkins was living there.

Respondent’s first contention is that the petition for the adjudication of wardship failed to state a cause of action and failed to invoke the jurisdiction of the “Juvenile Court.” There is no jurisdictional tribunal that is designated as the Juvenile Court. Any matter which involves juvenile is within the jurisdiction of the circuit court, which derives its jurisdiction from the Illinois Constitution. (In re L.E.J. (1983), 115 Ill. App. 3d 993, 451 N.E.2d 289.) Under the Constitution of 1970, the circuit court has original jurisdiction “of all justiciable matters.” (Ill. Const. 1970, art. VI, §9; In re L.E.J., 115 Ill. App. 3d 993, 451 N.E.2d 289; In re Dragoo (1981), 96 Ill. App. 3d 1104, 422 N.E.2d 263.) Therefore we conclude that, whatever the deficiencies of the petition at issue, the petition presented a justiciable matter that was within the subject matter jurisdiction of the circuit court.

Respondent also argues that the petition was fatally defective because it did not allege sufficient facts to enable her to prepare a defense. Ordinarily, the sufficiency of a complaint cannot be raised for the first time on appeal, and failure to raise the issue in the trial court results in a waiver on appeal. (Pieszchalski v. Oslager (1984), 128 Ill. App. 3d 437, 470 N.E.2d 1083; Oberman v. Byrne (1983), 112 Ill. App. 3d 155, 445 N.E.2d 374.) The sufficiency of the instant petition was not raised by respondent in the trial court, but she relies on In re B.K. (1984), 121 Ill. App. 3d 662, 460 N.E.2d 43, to support her contention that the issue was not waivable. However, In re B.K. provides that a waiver of an express allegation in a petition may occur if the issue is injected into the proceedings by the parties and actually tried at the hearing. Here, the issue of child abuse was injected into the proceeding by the parties and actually tried at the hearing. In addition, the petition for adjudication of wardship alleged that Carlenn was abused because respondent committed or allowed to be committed against her a sex offense listed in the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 1 — 1 et seq.). The petition further alleged that Carlenn’s environment was injurious to her welfare. Respondent had sufficient notice of the allegations and ample opportunity to investigate and present evidence in her defense when the matter was continued for hearing from March to July 1986. Therefore, we conclude that any deficiencies of the petition for adjudication of wardship did not violate the due process rights of respondent and that the alleged deficiency cannot be raised for the first time on appeal.

Respondent next contends that the trial court’s finding of abuse was against the manifest weight of the evidence because Carlenn’s testimony as to when she told respondent of the incidents of abuse was contradictory. Pursuant to section 2 — 4(2)(a)(iii) of the Juvenile Court Act then in effect, a sexually abused minor is one:

“(a) whose parent ***
(iii) *** allows to be committed any sex offense against such minor ***.” Ill. Rev. Stat. 1985, ch. 37, par. 702 — 4(2)(a)(iii).

In the instant case, the trial judge found that Carlenn was sexually abused and that the parent allowed the sexual abuse after Carlenn told respondent on several occasions that respondent’s boyfriend was subjecting her to various sexual acts. Although there were contradictions in her testimony as to when she reported these incidents and when Atkins came to live with respondent, Carlenn described sexually explicit acts which she had experienced. Whether it was due to the subject matter about which she was testifying or other factors, it was apparent that she had difficulty with her perception of time. This did not mean that .the sexual incidents did not occur and that she did not report them to respondent prior to being removed from respondent’s custody.

In cases involving the credibility of children who testify as to sexual abuse, the trial court must have broad discretion to reach a just determination, and a finding of abuse by the trial court is entitled to great deference. (In re Stilley (1977), 66 Ill. 2d 515, 363 N.E.2d 820; In re T.H. (1986), 148 Ill. App. 3d 877, 499 N.E.2d 988.) In this case, the trial court considered the contradictions in Carlenn’s testimony as to when she reported the sexual activity to respondent, but found that the minor testified clearly and convincingly with respect to the sexual abuse and that her testimony was rehabilitated as to when she reported the abuse to the respondent. The court found that Carlenn told respondent of the abuse on several occasions prior to her removal from the home. In addition, the court determined that a reasonable inference could be drawn that the respondent had knowledge of what occurred because of the duration and consistency of the abuse. For these reasons, we conclude that the trial court’s finding that respondent allowed the sex offenses to be committed against her daughter was not against the manifest weight of the evidence.

Respondent’s final contention is that the trial court’s finding that Carlenn’s environment was injurious to her welfare must be reversed because it was based on evidence relating to the incidents of sexual abuse. We disagree. The concept of an injurious environment is an amorphous one which cannot be defined with particularity, but rather each case should proceed on its own facts. (In re Harpman (1986), 146 Ill. App. 3d 504, 511, 496 N.E.2d 1242, 1246.) Plainly, the nightly episodes of sexual abuse constituted an injurious environment. In addition, Atkins threatened to kill Carlenn if she reported the incidents, and he remained in the household after his conduct was reported, thereby causing additional trauma to Carlenn. Moreover, Carlenn had to report the sexual abuse to three adults on several different occasions before any action was taken and the respondent continued to disbelieve her. We believe that each of these circumstances created an injurious environment. In re Harpman (1986), 146 Ill. App. 3d 504, 496 N.E.2d 1242; In re Marcus E. (1989), 183 Ill. App. 3d 693, 539 N.E.2d 344.

For the foregoing reasons, the order of the circuit court is affirmed.

Affirmed.

WHITE and CERDA, JJ., concur.


author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE ALVAREZ, Defendant-Appellant.
    First District (2nd Division)
    No. 1—87—1164
    Opinion filed June 6, 1989.
    Rehearing denied August 16, 1989.

      Michael J. Pelletier, Martin Carlson, and Timothy T. McLaughlin, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and William B. Schiller, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant appeals his conviction for murder and his sentence of 50 years’ imprisonment, raising the following issues: (1) whether the trial court erred in admitting into evidence the victim’s statement identifying defendant as his assailant; (2) whether the trial court abused its discretion in denying defendant’s motions for a mistrial; (3) whether defendant was denied a fair trial by the prosecutor’s statements during opening and closing arguments; (4) whether it was plain error for the trial court not to instruct the jury on voluntary manslaughter; and (5) whether the trial court abused its discretion in sentencing defendant to an extended term.

Defendant was charged with three counts of murder and one count of home invasion. At a pretrial hearing held after defendant objected to the State’s use of a police officer’s testimony that the victim had identified him, Chicago police officer Michael Fuith testified that on September 7, 1985, at 3:50 a.m., he and his partner responded to a call that a man had been stabbed at 1426 West Leland in Chicago. When they arrived at the scene, a group of people was supporting the victim, Donald Curry, who was bleeding profusely from the upper part of his body. Fuith stated that the victim was “angry and excited,” and that he identified defendant as his attacker. The other people present also indicated that defendant was the assailant. The police then transported the victim to the hospital, and on the way there the victim again stated that defendant had stabbed him “over a woman.” In the emergency room the victim continued to implicate defendant. On cross-examination, Fuith admitted that his reports do not make reference to having any conversations with defendant at the scene, in the police car or at the hospital. He claimed to have related these conversations to a detective, but there is no reference to the victim’s statements in the detective’s report. The trial judge ruled that he would not allow the victim’s statements in as dying declarations, but would admit them as excited utterances. He made a finding that there was an occurrence sufficiently startling to produce a spontaneous declaration, an absence of time to fabricate, and that the officer’s question of what had happened did not destroy the spontaneity of the declaration. The following day, prior to trial, the judge sua sponte modified his ruling to allow the State to present testimony as to only one of the victim’s statements identifying defendant, stating that “if one repeats the statement numerous times, it at some point becomes no longer a spontaneous declaration.” He allowed the State to choose which of the victim’s statements it would use, either that made when the police first arrived at the scene or his statement while being transported in the police car to the hospital.

At trial, Debra Carroll testified that she lived in a second-floor apartment at 1426 West Leland with her common law husband, Fred Hakanson, and their children. Fred’s brother Eric also resided in the apartment at the time of the stabbing. Carroll knew everyone involved in the occurrence. Elizabeth Bradley, a friend of Carroll’s, had been dating the victim for about two weeks, and defendant was “Bradley’s live-in boyfriend.” At approximately 3:30 a.m., on September 7, 1985, Bradley and the victim arrived at Carroll’s apartment. Carroll was asleep, but she heard Eric Hakanson, who was sleeping on a couch in the living room, answer the doorbell and she also heard the victim say “It is me, Don,” as he entered the apartment. Carroll remained in bed, and although she heard Eric lay on the couch, she did not know what the victim did or where he went in the apartment. Approximately 10 minutes later, Carroll heard “a shuffling noise” and she walked into the living room. There, she saw defendant bent over Bradley and the victim, who were lying on the floor, pulling a knife out of the victim’s chest. Carroll exclaimed “Oh, my God,” and defendant turned around, looked at her, then ran towards the back door. Carroll followed him to the back porch and watched him run through a gangway and into an alley. Carroll returned inside to alert the others that defendant was in the alley, then she grabbed a baseball bat and ran down the back stairs to the second-floor landing, where she encountered defendant. They struggled, and then defendant ran back into the gangway and into the alley. By the time she returned to her apartment, Fred and Eric had already helped the victim down to the front of the building. Approximately an hour later, she telephoned Fred at the hospital to tell him that defendant was standing across the street from their building. Upon Fred’s return a short time later, Carroll saw defendant motion “come on, come on” to Fred, who started to chase him. She later learned that defendant had been arrested. The victim died three days later.

On cross-examination, Carroll testified that when she heard the “shuffling” she did not hear yelling or things getting knocked over, and, although her two Labrador dogs were in the living room, they did not bark.

Officer Fuith testified that he and his partner transported the victim to the hospital, and on the way the victim kept repeating, “fucking Alvarez, he stabbed me, he fucking stabbed me over a woman,” and that “I was going out with his girl friend and he couldn’t handle it and the jealous little prick, he couldn’t handle it.” Additionally, Fuith stated that the victim indicated that defendant had stabbed him “in the apartment where he had been staying.” Fuith also testified that he had conversations with Fred, Eric and Bradley, both at the scene and at the hospital, and that after these conversations he sent a radio broadcast into his district to look for defendant. Defendant was apprehended later in the morning of September 7, 1985, after being chased by police.

Dr. Edmund Donoghue testified that he performed an autopsy on the victim, which revealed that he had suffered a deep stab wound to the upper left lobe of the lung, between the second and third ribs, a stab to the left lower lobe of the lung, a stab wound to the upper abdomen which perforated the left lobe of the liver, and superficial stab wounds to the chest, armpit and left arm, as well as various bruises and abrasions. He gave his opinion that the victim died of multiple stab wounds, and he disagreed with defense counsel’s suggestion that he died from liver failure and renal failure.

Dr. Michael Friedberg, the victim’s treating physician, testified that, but for his cirrhosis of the liver and portal hypertension, the victim would not have died from his stab wounds; on cross-examination, he stated that without the stab wounds, the victim would not have died when he did.

The jury found defendant guilty of murder, and the trial court directed a verdict in favor of defendant on the home invasion charge. After hearing factors in aggravation and mitigation, the trial judge sentenced defendant to an extended term of 50 years’ imprisonment, finding that the crime was “accompanied by exceptionally brutal and heinous behavior.” He now appeals his conviction and sentence.

Opinion

Defendant first argues that the trial court erred in allowing Officer Fuith to testify regarding the victim’s statements identifying him as his assailant. He contends that Fuith’s testimony is “devoid of all credibility,” because there was nothing in his reports concerning the victim’s statements, and thus he was relying on his memory alone to relate statements made a year previously. The State correctly responds that the trial judge had an opportunity to view the witness and weigh his credibility, and it is not unreasonable to believe that Fuith remembered what a severély wounded and bleeding man had said as he was transported to the hospital. Moreover, at trial the jury was told that there was nothing in Fuith’s reports regarding the victim’s statements, and thus they knew he was relying on his memory when they weighed his credibility

The victim’s statements were admitted under the spontaneous declaration exception to the hearsay rule. In order to bring a statement within that exception, the following elements must be present: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) an absence of time to fabricate; and (3) the statement must relate to the circumstances of the case. (People v. Poland (1961), 22 Ill. 2d 175, 174 N.E.2d 804.) The spontaneity of a statement is to be judged from the totality of the circumstances surrounding the event (People v. Smith (1984), 127 Ill. App. 3d 622, 469 N.E.2d 634), the evidence must indicate that the declarant personally observed the matters which are the subject of the spontaneous declaration (People v. Poland (1961), 22 Ill. 2d 175, 174 N.E.2d 804), and the declarant must be deemed reliable. People v. Miller (1978), 58 Ill. App. 3d 156, 373 N.E.2d 1077.

Defendant contends that there was an absence of evidence to support the inference that the victim had an opportunity to perceive and identify his assailant and thus his statements should not have been admitted. He asserts that there is no indication that the victim was awake when he was attacked, and, in fact, it was more than likely that he was asleep. He emphasizes that the victim was lying on the floor, everything was quiet, no one yelled or screamed, nothing was knocked over, and the dogs did not bark. He maintains that the evidence indicates that it is probable that the victim did not see his attacker and that he identified defendant based on the statements of other people.

The State responds that the claim that the victim slept through his own stabbing is “without merit,” yet it argues that the murder was exceptionally brutal and heinous because defendant attacked a sleeping man. The State may be seen to resolve this apparent contradiction by arguing that the victim awoke during the attack; however, it fails to make its position clear in its brief. The State notes that the victim positively identified defendant and that he understood that defendant attacked him because of his relationship with Bradley. It argues that his identification is reliable and satisfies the spontaneous declaration exception, hence it was properly admitted.

The jury took into consideration the testimony that no one screamed or knocked over anything and that the dogs did not bark, and it accepted the victim’s statements as truthful. The statements were admissible as spontaneous declarations, and the circumstances surrounding them go to the weight given them by the jury. We find no error in the trial court’s rulings on the issues raised by defendant on this aspect of his case.

Defendant next argues that the trial court abused its discretion in denying his motions for a mistrial. Although defendant made several such motions, he raises the denial of only three of them in this appeal. He contends that testimony from witnesses not present at trial was admitted, thereby denying him his right to a fair trial and to confront his accusers.

Fred Hakanson testified that he and his brother looked for defendant after returning from the hospital on September 7, 1985. The prosecutor then asked the following questions:

“Q. Mr. Hakanson, Eric was with you the entire time you were looking for the defendant, is that correct?
A. Yes, ma’am.
Q. And he was also with you when you talked to the police, isn’t that correct?
A. Yes.
Q. And Eric told the police—
[DEFENSE COUNSEL]: Objection to what Eric told the police. They know better than that.
THE COURT: Objection sustained. I will ask the jury to disregard that.
Q. Mr. Hakanson, the only person that the police were looking for was Eddie Alvarez, is that correct?
A. Yes.
Q. Eric told the police that he ran from the apartment that night, didn’t he?
[DEFENSE COUNSEL]: Objection, Judge.
THE COURT: Sustained.
[DEFENSE COUNSEL]: I have a motion.”

The judge denied defendant’s motion for a mistrial, stating:

“Counsel, your motion for a mistrial, at this point, is inappropriate.
The Court agrees, it was improper to ask those questions. I would advise the State’s Attorney not to do so again. However, I will respectfully deny your motion for a mistrial. I have ordered the jury to disregard that. I feel that satisfies the point.”

The State then called Officer Fuith, who testified that he had conversations with Bradley, Fred and Eric at the hospital, and that after talking with these witnesses and the victim, he put out a transmission for his police district. Defense counsel objected, arguing that it was “hearsay by implication” to allow Fuith to give the impression that “all four of these individuals *** have said to [him] it was Eddie Alvarez.” He then made a motion for a mistrial, which the judge denied, stating that Fuith had a right to explain his investigation. The judge

offered to instruct the jury, but defense counsel replied:

“I don’t believe that will correct the problem we have here. I move for a mistrial. I did [sic] not want the Court to make any further attempts — I’m hoping that may be the jury will forget.
I understand the limits. The Court wants to give the instruction to the jury and I don’t believe that would solve this problem. And I don’t want to bring any more attention to the question.”

Fuith continued testifying that he sent a broadcast to his district; that after leaving the hospital he and his partner continued to search for the offender; and that'they knew they were looking for defendant.

Finally, during rebuttal arguments, the prosecutor stated:

“They all named Eddie Alvarez from the get go, that’s the man they knew in their living room and every witness said the same thing.
[DEFENSE COUNSEL]: Objection, Judge. This was talked about at sidebar[,] what all the witnesses said.
THE COURT: Again, counsel refers to the witnesses that testified. You may continue.
[THE PROSECUTOR]: Witnesses that testified told you what happened. You know the other witnesses were present when the police were beginning their investigation and you know how they responded.
[DEFENSE COUNSEL]: Objection, Judge.
THE COURT: I’d sustain the objection. Ladies and gentlemen, you may only consider the testimony of the witnesses that actually testified here in court.
[DEFENSE COUNSEL]: I will make a motion at the end.”

The judge once again denied defendant’s motion for a mistrial, stating:

“The Court has admonished the jury both at the time of the objection and at the conclusion of all the arguments. I further advised them they should not consider or conjecture as to what any other witness that did not testify might have said. Therefore, in my humble judgment, I feel that that would rectify whatever you think may have happened.”

Defendant argues that the only evidence against him was the identification by Carroll and the “questionable excited utterance of the victim.” He claims that the effect of the testimony and arguments cited above was to improperly corroborate Carroll’s testimony, and that there was no way for the trial court to “remove the damaging evidence from consideration by the jury.”

The State responds that there was overwhelming evidence of defendant’s guilt, and therefore any allegedly improper comments could not have influenced the jury or prejudiced defendant. Further, the State argues, the trial court admonished the jury during and after trial to consider only testimony of the witnesses that testified at trial, thus curing any error.

The decision whether to grant a mistrial is within the discretion of the trial court (People v. Watson (1982), 103 Ill. App. 3d 992, 431 N.E.2d 1350), and such a determination will not be reversed unless it appears that there was a manifest necessity for a mistrial or that the ends of justice would be affected by continuing with the trial. (People v. Roberts (1980), 83 Ill. App. 3d 311, 404 N.E.2d 278.) It must appear that the jury has been so influenced and prejudiced that it cannot be fair and impartial (People v. Rose (1979), 77 Ill. App. 3d 330, 395 N.E.2d 1081), and that the damaging effect on the jury cannot be removed by admonitions or instructions. People v. Henderson (1976), 36 Ill. App. 3d 355, 344 N.E.2d 239.

In the instant case, the evidence of defendant’s guilt is exceedingly strong. Both Carroll and the victim positively identified defendant as the assailant, there was testimony that defendant fled when chased by the Hakansons and the police, as well as testimony regarding defendant’s motive. The judge instructed the jury to consider only proper evidence, of which there was enough to support their verdict. Thus, even if the State improperly led the jury to believe that Bradley and Eric Hakanson had identified defendant, that would not be a basis for reversing his conviction.

Defendant next argues that the trial court erred in failing to instruct the jury on voluntary manslaughter. Neither party cites People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, to this court, although that decision was filed long before the State filed its response and defendant filed his reply brief.

In Reddick, the court addressed the issue:

“When a defendant charged with murder asserts that the killing (if unjustified) is at most voluntary manslaughter because either (a) he acted in the unreasonable belief that the killing was justified or (b) he acted under a sudden and intense passion caused by adequate provocation [citation], who bears the burden of proof on these issues and what is the extent of the burden?” (123 Ill. 2d at 193.)

The court held:

“[I]f a defendant in a murder trial presents sufficient evidence to raise issues which would reduce the charge of murder to voluntary manslaughter, then to sustain the murder conviction, the People must prove beyond a reasonable doubt that those defenses are meritless, and must also prove beyond a reasonable doubt the statutory elements of murder.
The burden-of-proof instructions regarding both voluntary manslaughter and murder *** were thus incorrect in placing upon the People the burden of proving the existence of intense passion or unreasonable belief in justification. The instructions should have placed upon the People the burden of disproving the existence of either of these two states of mind.” (123 Ill. 2d at 197.)

The court considered the burden-of-proof instructions even though defendants in that consolidated appeal had not objected to the instructions as given, presented new ones at trial, or raised the issue in their post-trial motions. The court stated that “instructions *** [on] the burden of proof and elements of the offense, are essential to a fair trial and *** the failure to give such instructions constitutes grave error when, viewing the record as a whole, it appears that the jury was not apprised of the People’s burden of proof.” 123 Ill. 2d at 198.

In the instant case, defense counsel admitted during the sentencing hearing that, although the victim was lying on the floor next to defendant’s girl friend, “[it] wasn’t even argued that that was a justification for the stabbing.” However, there was testimony that the victim dated Bradley while she lived with defendant and that he was killed while lying next to her on the floor. During the sentencing hearing, the judge stated, “I am mindful there was a passion involved.” Reddick held that it was “grave error” not to properly instruct the jury in a murder case that the State had the burden to disprove that defendant acted under a sudden and intense passion when defendant has presented sufficient evidence to raise the issue. However, we do not believe that Reddick is controlling in this case, because defendant never argued that he acted under such a passion.

Defendant cites a number of cases in support of his contention that an instruction on voluntary manslaughter should have been given in his case (People v. Leonard (1980), 83 Ill. 2d 411, 415 N.E.2d 358; People v. Joyner (1972), 50 Ill. 2d 302, 278 N.E.2d 756; People v. Moore (1980), 89 Ill. App. 3d 202, 411 N.E.2d 579; People v. Winters (1978), 56 Ill. App. 3d 500, 371 N.E.2d 1226); however, none of these cases involved a situation similar to the case at bar, where defendant did not argue that he had killed as a result of passion and did not request a voluntary manslaughter instruction.

The State argues that when the evidence in a murder case would support a verdict of manslaughter, and defendant does not request an instruction on manslaughter, the decision on whether to give such an instruction is within the discretion of the trial judge (People v. Taylor (1967), 36 Ill. 2d 483, 224 N.E.2d 266), and that the trial judge did not abuse his discretion in the instant case, because he could reasonably have assumed that defendant was gambling that if the jury were given only a murder instruction, they would be more likely to acquit him.

Supreme Court Rule 451(c) provides that “substantial defects are not waived by failure to make timely objections [to instructions] if the interests of justice require.” (107 Ill. 2d R. 451(c).) This rule is a limited exception to the waiver rule and applies only in cases of grave error, where the case is factually close and fundamental fairness requires that the jury be properly instructed. (People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331.) This is not a case of defense counsel neglecting to request a voluntary manslaughter instruction; rather, defendant never contended that he had acted under a sudden passion. Thus, although there may have been evidence to suggest that one could have acted under such a passion, there was no evidence to support defendant’s claim that he did. The trial court did not err in failing sua sponte to instruct the jury on voluntary manslaughter.

Defendant next argues that he was denied a fair trial by the prosecutor’s remarks during opening and closing arguments. During opening argument, the prosecutor told the jury:

“[Y]ou will learn that Donald Curry and Elizabeth Bradley laid [sic] on the living room floor, and they were watching T.V., kind of watching T.V., half dozing off into sleep; a common activity that I am sure we have all done at one time or another.
And you will learn that Eddie Alvarez also came to 1426 West Leland, and he came there with a knife. He came there with a large butcher knife, and he came there to do one thing; to kill Donald Curry.
Well, that was the opportunity that the man needed, because what he did was, he came to the stairwell that led directly to the apartment of Debra Carroll, and climbed up to the second floor, and entered into the apartment ***. From the kitchen, he moved into the dining room. From the dining room, he began walking directly toward the street, which is the front of the apartment, and that is where the living room is located; that is where Donald Curry was lying on the floor, looking at television, and Elizabeth Bradley was lying beside him.
You will learn that Donald Curry began to move, and began to try to prevent the attack of Eddie Alvarez; and, at the time he was being attacked, he looked at who his attacker was. He saw that it was Eddie Alvarez, a man he had known for years.”

Defendant asserts that the prosecutors knew that they had no evidence to show that Bradley and the victim were awake, that defendant came to the apartment armed with a butcher knife, that the victim struggled with defendant or that he knew defendant. He emphasizes that there was no testimony to show that he did not arrive at the apartment with the victim, or that Eric Hakanson permitted him to enter through the front door. Defendant claims that the prosecutor gave testimony in his opening argument, knowing that he was filling in gaps in a weak case.

During closing argument, the prosecutor again described “a killer in the alley[,] who was creeping from the alley through the gangway, up the stairs and up to the second floor *** where he found who he was looking for, Donald Curry.” Defendant asserts that there was no evidence that his actions were premeditated. As noted previously, the prosecutor also referred to “other witnesses *** you know how they responded,” and that “[t]hey all named Eddie Alvarez.” Defendant complains that during trial, the prosecutors questioned Officer Fuith in such a manner that purported identifications of defendant by Bradley and Eric Hakanson, two witnesses who did not testify, were brought before the jury. That testimony, he charges, combined with the prosecutor’s closing remarks, prejudiced him and denied him a fair trial.

The State maintains that its opening argument was proper and that the prosecutors merely made inferences from the evidence. It also contends that defendant did not complain of its opening argument in his post-trial motion and that he has waived the issue on appeal. It claims that the trial judge cured any error during trial by instructing the jury to disregard any improper questions. Defendant did not object to the references during closing argument to “a killer *** creeping through the alley,” and the State argues that he has therefore waived that issue on appeal. Finally, the State argues that any error was harmless and does not warrant reversal.

It is improper for a prosecutor to include matters in her opening statement which are not proved thereafter; however, absent deliberate misconduct on the part of the prosecutor, the error is not grounds for reversal unless it resulted in substantial prejudice to defendant. (People v. Kelly (1985), 134 Ill. App. 3d 732, 741-42, 480 N.E.2d 1343.) In the instant case, the prosecutors did more than draw inferences, they supplied unproven facts. They also improperly questioned Fred Hakanson on the substance of Eric Hakanson’s statements to the police, and during rebuttal argument they implied that both Bradley and Eric had identified defendant. This conduct does not mandate a reversal of defendant’s conviction, however, because although the prosecutors displayed “excessive and improper zeal,” they did not engage in deliberate misconduct. Moreover, these comments did not “substantially prejudice” defendant, since the evidence of his guilt was overwhelming.

Defendant’s final argument is that the trial judge improperly sentenced him to 50 years’ imprisonment. The term of imprisonment for murder is not less than 20 years and not more than 40 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(1).) An extended term of not less than 40 years but not more than 80 years may be imposed if factors in aggravation are present. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2.) Here the trial court made a finding that the crime was exceptionally brutal and heinous, and defendant contends that the evidence in this case does not support such a finding. He argues that, but for the victim’s poor health, this would be a case of aggravated battery. The State maintains that the sentence is a proper exercise of judicial discretion.

In sentencing defendant, the judge noted that defendant was clearly identified, that he was in another person’s home, that there was no indication of a struggle and that there were multiple stab wounds as opposed to a single stab wound. Although the judge was told that defendant was on probation when the stabbing took place, it appears from the record that defendant completed his probation approximately two months prior to committing this offense. However, the judge was correctly informed that defendant was convicted of larceny of an auto in 1961, theft in January 1968, theft in May 1968, possession of marijuana in 1975, and aggravated battery in 1983.

A trial court’s decision on sentencing is entitled to great weight and deference (People v. LaPointe (1982), 88 Ill. 2d 482, 431 N.E.2d 344) and will not be disturbed on review absent a showing of abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) An appellate court is not to substitute its judgment for that of the trial court merely because it would have balanced the appropriate factors differently had the task of sentencing been charged to it. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) Defendant has not shown that the trial court abused its discretion in sentencing him to an extended term; thus, his sentence must be affirmed.

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

Affirmed.

BILANDIC, P.J., and HARTMAN, J., concur.


author: JUSTICE McMORROW

text:
    JANICE POOLE, Plaintiff-Appellant, v. UNIVERSITY OF CHICAGO, Defendant-Appellee.
    First District (4th Division)
    No. 1—87—2073
    Opinion filed June 29, 1989.
    Rehearing denied August 31, 1989.

      Corboy & Demetrio, P.C., of Chicago (Philip H. Corboy, Thomas A. Demetrio, and Susan J. Schwartz, of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago (William C. Anderson III and Hugh Griffin, of counsel), for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff Janice Poole (plaintiff) underwent subtotal thyroidectomy surgery performed by a physician employed by defendant University of Chicago (defendant). As a result of that surgery, plaintiff suffered permanent bilateral vocal cord paralysis that severely restricted her ability to breathe or speak. A jury in plaintiff’s medical malpractice suit against defendant found that the surgeon had not been negligent in performing the surgery, and plaintiff appeals. Upon review, plaintiff contends that a res ipsa loquitur instruction should have been given to the jury and that defendant’s improper cross-examination of plaintiff’s expert witness constituted reversible error. We conclude that the trial court should have instructed the jury to consider res ipsa loquitur principles in plaintiff’s negligence case against defendant. We further determine that plaintiff was prejudiced by defendant’s improper cross-examination of plaintiff’s expert witness at trial. As a result, we reverse and remand.

Plaintiff suffers from Graves’ disease, a potentially fatal abnormality of the thyroid gland. As treatment for this condition, plaintiff underwent a subtotal thyroidectomy in June 1977 at defendant’s hospital. In a subtotal thyroidectomy, a portion of the patient’s thyroid is removed. The thyroid sits on both sides of the trachea and is connected across the trachea by a midline called the isthmus. Behind the thyroid, and running alongside the trachea, are the recurrent laryngeal nerves, which are responsible for innervation of the larynx and the vocal cords.

Prior to the surgery, examination of plaintiff revealed that she had a slightly hoarse, basically good voice quality, with normal appearance and motion of the larynx and vocal cords. Following the surgery, examination disclosed that plaintiff’s vocal cords were paralyzed in a position that caused decreased passage in her airway and prevented her from speaking. Plaintiff’s bilateral vocal cord paralysis was caused during the surgery by damage to the recurrent laryngeal nerves.

The disputed issue at trial centered on the propriety of certain methods used to perform the surgery upon plaintiff. Plaintiff’s expert witness at trial, Dr. Alvin Bakst, testified that there are two procedures commonly used in performing a subtotal thyroidectomy. One procedure is to clear the trachea in removing the thyroid gland. In this procedure, the surgeon transects or cuts the isthmus and removes that part of the thyroid located in front of the trachea, leaving the trachea clear, visible, and bare. A second procedure is to remove portions of the thyroid without clearing the trachea, i.e., without removing that part of the thyroid situated in front of the trachea.

It was the expert opinion of Dr. Bakst at trial that a surgeon should locate and protect the recurrent laryngeal nerves when the surgery will include clearing of the trachea. It was also Dr. Bakst’s expert opinion that the surgeon should not use electrocautery to control bleeding in the glandular area of the trachea near the recurrent laryngeal nerves. Based on the operative report of the subtotal thyroidectomy performed upon plaintiff, Dr. Bakst concluded that the surgeon who performed this surgery had cleared the trachea but had not located and protected the recurrent laryngeal nerves. Dr. Bakst also concluded that electrocautery had been used to control bleeding in the glandular area of the trachea near the recurrent laryngeal nerves.

Dr. Bakst recognized that vocal cord paralysis is a risk associated with subtotal thyroidectomy surgery and may occur without negligence on the part of the surgeon. However, Dr. Bakst also testified on direct examination that plaintiff’s bilateral vocal cord paralysis ordinarily would not have occurred in the absence of a deviation from the standard of care. Dr. Bakst explained that bilateral vocal cord paralysis “implies there was a deviation somewhere during the operation procedure [because] bilateral [voice cord paralysis is] just too much to expect by chance.”

On cross-examination, Dr. Bakst testified that bilateral vocal cord paralysis does not in all instances prove that the operating physician was negligent, and that bilateral vocal cord paralysis could be an unavoidable complication of the surgery. Dr. Bakst stated that if the trachea were not cleared during the surgery, and if electrocautery were not used to control bleeding in the glandular area of the trachea, then plaintiff’s vocal cord paralysis would not have been the result of the surgeon’s negligence, but would instead be an unfortunate complication of the surgical procedure.

On redirect examination, Dr. Bakst repeated his original testimony on direct examination that plaintiff’s bilateral vocal cord paralysis ordinarily would not have resulted absent the operating physician’s negligence, because the surgery was performed by clearing the trachea without locating and protecting the recurrent laryngeal nerves, and by the use of electrocautery to control bleeding in the glandular area of the trachea near the recurrent laryngeal nerves.

Dr. Bakst also stated that, in his opinion, both the failure to locate the recurrent laryngeal nerves in order to clear the trachea, and the use of electrocautery in the glandular area of the trachea, fell below the standard of care with respect to the performance of a subtotal thyroidectomy. It was Dr. Bakst’s opinion that these deviations from the standard of care led to damage of plaintiff’s recurrent laryngeal nerves during the surgery, and thereby proximately caused the permanent bilateral vocal cord paralysis plaintiff suffered following her surgery.

Dr. Edwin Kaplan, who performed the subtotal thyroidectomy upon plaintiff, explained at trial the procedures he followed to perform the surgery. He testified at trial that he did not locate or protect the recurrent laryngeal nerves and that he cleared the trachea by removing part of the thyroid in front of the trachea. He also testified that he used electrocautery to control bleeding in the glandular area of the trachea near the recurrent laryngeal nerves. Dr. Kaplan stated that in his opinion, these procedures were acceptable surgical methods at the time he performed plaintiff’s subtotal thyroidectomy. Dr. Kaplan also stated at trial that he has since changed his operating procedure and now locates and protects the recurrent laryngeal nerves whenever the subtotal thyroidectomy will include a clearing of the gland from the trachea.

Dr. Norman Thompson, defendant’s expert witness at trial, testified that it was medically and surgically acceptable not to locate and protect the recurrent laryngeal nerves in order to clear the trachea during a subtotal thyroidectomy. He further stated that in his opinion, plaintiff’s bilateral vocal cord paralysis was an unfortunate complication that did not imply negligence on the part of the operating surgeon. Dr. Thompson gave no testimony regarding the propriety of electrocautery to control bleeding in the glandular area of the trachea near the recurrent laryngeal nerves.

The trial court declined to instruct the jury regarding principles of res ipsa loquitur. The jury returned a verdict in favor of defendant, and plaintiff appeals.

Plaintiff argues that the trial court should have instructed the jury on res ipsa loquitur. We agree.

“The doctrine of res ipsa loquitur allows the trier of fact to draw an inference of negligence from circumstantial evidence when direct evidence of the cause of the injury is primarily within the knowledge and control of the defendant.” (Clay v. Brodsky (1986), 148 Ill. App. 3d 63, 70, 499 N.E.2d 68, citing Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 207 N.E.2d 305.) “[T]he doctrine is not a separate theory of liability [but] a type of circumstantial evidence which permits the trier of fact to infer negligence when the precise cause of injury is not known by the plaintiff.” (Briones v. Mobil Oil Corp. (1986), 150 Ill. App. 3d 41, 45, 501 N.E.2d 821.) In order to establish a prima facie case of res ipsa loquitur, a plaintiff must demonstrate that “(1) the incident is one that ordinarily does not occur in the absence of negligence and (2) the defendants had exclusive control of the instrumentality that caused the injury.” (Robles v. Chicago Transit Authority (1988), 173 Ill. App. 3d 46, 52, 527 N.E.2d 361, citing Dyback v. Weber (1986), 114 Ill. 2d 232, 242, 500 N.E.2d 8.) “A plaintiff need not conclusively prove all the elements of res ipsa loquitur in order to invoke the doctrine. He need only present evidence showing that elements exist ***.” (Dyback v. Weber, 114 Ill. 2d at 242.) Thus “the inference, or presumption [of negligence], does not simply vanish or disappear when contrary evidence appears, but remains to be considered with all the other evidence in the case and must be weighed by the jury against the direct evidence offered by the party charged.” Metz v. Central Illinois Electric, 32 Ill. 2d at 449.

Application of these principles recently led the Illinois Appellate Court to determine that a res ipsa loquitur instruction should have been given under circumstances similar to those of the case at bar. In Coffey v. Brodsky (1987), 165 Ill. App. 3d 14, 518 N.E.2d 638, appeal denied (1988), 119 Ill. 2d 554, plaintiff filed a medical malpractice action for injuries allegedly resulting from improper surgical procedures used during an abdominal hysterectomy. At a jury trial, the court directed a verdict in favor of the defendant with respect to plaintiff’s res ipsa loquitur count, and the jury returned a verdict in favor of the defendant on plaintiff’s specific negligence count.

In concluding that the trial court erred in directing a verdict for defendant on plaintiff’s res ipsa loquitur count, the appellate court relied upon Kolakowski v. Voris (1980), 83 Ill. 2d 388, 397, 415 N.E.2d 397, in which the Illinois Supreme Court recognized that a plaintiff’s introduction of evidence of defendant’s specific acts of negligence does not deprive the plaintiff of “his right to rely on the doctrine of res ipsa loquitur where such specific evidence does not conclusively establish the cause of the injury.” The appellate court also relied upon W. Prosser & W. Keeton, Torts section 40, at 260 (5th ed. 1984), which observes that “the introduction of some evidence which tends to show specific acts of negligence on the part of the defendant, but which does not purport to furnish a full and complete explanation of the occurrence, does not destroy the inferences which are consistent with the evidence, and so does not deprive the plaintiff of the benefit of res ipsa loquitur.” Based upon these precedents, the appellate court concluded that the jury should have been instructed with respect to res ipsa loquitur, reasoning that the plaintiff’s evidence “eliminated any inference of other causes, but strengthened the inference that defendant did not use due care.” Coffey, 165 Ill. App. 3d at 24.

We also conclude that the jury in the instant cause should have been instructed regarding principles of res ipsa loquitur, as plaintiff’s evidence in the instant case did not conclusively establish the cause of her injury. Plaintiff’s position at trial, undisputed by the defendant, was that the bilateral vocal cord paralysis had been caused by damage to the recurrent laryngeal nerves during the subtotal thyroidectomy. However, as the court noted in Coffey v. Brodsky, “[d]etermining the cause of the injury does not answer the question whether the injury is the type of occurrence that ordinarily happens in the absence of negligence[,] [and] [b]oth parties produced expert witnesses who differed in their views on this issue.” 165 Ill. App. 3d at 24.

Although defendant did not dispute that plaintiff’s bilateral vocal cord paralysis had resulted from damage to the recurrent laryngeal nerves during the surgery, defendant’s expert testified that plaintiff’s paralysis was an unfortunate complication of the surgery that did not imply malpractice on the part of the surgeon. Plaintiff’s expert testified that the plaintiff’s bilateral vocal cord paralysis ordinarily would not have occurred absent negligence on the part of the operating physician in clearing the trachea without locating and protecting the recurrent laryngeal nerves and in using electrocautery to control bleeding in the glandular area of the trachea. Thus, plaintiff’s evidence in the case at bar established that her bilateral vocal cord paralysis resulted from damage to her recurrent laryngeal nerves, but did not conclusively prove how or why the nerves were damaged. Accordingly, we determine that the trial court should have instructed the jury regarding res ipsa loquitur in the instant cause and therefore reverse the court’s judgment and remand the matter for a new trial.

Defendant argues that the res ipsa loquitur instruction issue has not been preserved for review because the record does not include the res ipsa loquitur instruction plaintiff tendered to the trial court. The record clearly shows that plaintiff tendered a res ipsa loquitur instruction to the trial court, that defendant objected on the ground that the facts did not support a res ipsa loquitur instruction, and that the trial court excluded the instruction based upon defendant’s argument. In her post-trial motion, plaintiff renewed her contention that the res ipsa loquitur instruction should have been given, and she raises that claim again on appeal. Accordingly, we find that the question has been properly preserved for review. Defendant also argues that plaintiff did not tender a standard res ipsa loquitur instruction, but we do not address this contention since it was not presented to the trial court and is accordingly waived on appeal.

We also determine that plaintiff was prejudiced by improper cross-examination of her expert witness. The record shows that during cross-examination of Dr. Bakst, defense counsel asked the physician whether he had ever been the subject of any medical disciplinary proceedings in California since 1977. Dr. Bakst responded that he had not. Defense counsel then tendered to Dr. Bakst a document dated November 1985 that had been filed by the California State medical licensing board against Dr. Bakst. At the time of trial, this November 1985 disciplinary matter was still pending final disposition by the board. Defense counsel then elicited from the witness affirmative responses that the document contained certain specific allegations of incompetence on the part of Dr. Bakst. Counsel for plaintiff objected to this line of cross-examination.

The trial court allowed to remain in evidence both Dr. Bakst’s statement that he had not been the subject of medical disciplinary proceedings since 1977 and the identification of the November 1985 disciplinary charge against Dr. Bakst. At plaintiff’s request, the trial court admonished the jury to disregard the details of any of the accusations contained in the November 1985 California disciplinary charge against Dr. Bakst. During closing argument, defense counsel referred to plaintiff’s expert as a “liar” and a “prostitute,” and directed the jury’s attention to the November 1985 California medical disciplinary charge in which, according to defense counsel, Dr. Bakst was accused of “incompetence.”

Initially, we note that defense counsel improperly impeached Dr. Bakst during cross-examination following Dr. Bakst’s denial of the pending November 1985 California medical disciplinary charge. “Subject to the discretion of the judge in determining its relative value for such purpose, *** it is relevant and proper on cross-examination to inquire into collateral matters revealing the past conduct of the witness which tends to impeach his credibility ***.” (S. Gard, Illinois Evidence Manual §22:12, at 449 (2d ed. 1979).) However, “[i]f the answer [regarding the witness’ past conduct] is unsatisfactory to the cross-examiner because he believes or knows it to be untrue, he is nevertheless bound by it and cannot impeach the answer of the witness by other evidence.” (S. Gard, Illinois Evidence Manual 450 (2d ed. 1979); see also Kelley v. American Motors Corp. (1985), 130 Ill. App. 3d 662, 675, 474 N.E.2d 814; Pagel v. Yates (1984), 128 Ill. App. 3d 897, 901, 471 N.E.2d 946; Herget National Bank v. Johnson (1974), 21 Ill. App. 3d 1024, 1028.) Dr. Bakst’s denial of the pending medical disciplinary charge against him was a collateral matter in plaintiff’s case against defendant, since the disciplinary charge was not a material issue in plaintiff’s medical malpractice claim. As a result, once Dr. Bakst denied the existence of the pending disciplinary charge, defense counsel was bound by that denial and could not impeach Dr. Bakst’s denial by producing a document purportedly setting forth the pending disciplinary claim.

Defense counsel compounded the error of his improper cross-examination of Dr. Bakst when defense counsel relied on this collateral pending disciplinary charge in his closing argument to the jury. In order to persuade the jury that plaintiff’s expert was not credible, defense counsel drew the jury’s attention to the pending medical disciplinary charge against Dr. Bakst, noted that the charges involved “incompetence” and accused Dr. Bakst of being a “liar” and a “prostitute.” The prejudice to plaintiff is readily apparent. The jury’s verdict would rest largely on its assessment of the comparative weight it would attach to the opinions of the parties’ expert witnesses, and Dr. Bakst was plaintiff’s only expert witness. Under these circumstances, defense counsel’s actions may have improperly influenced the jury’s assessment of the credibility of the testimony of plaintiff’s expert witness, and we therefore conclude that plaintiff is entitled to a new trial. See, e.g., Underwood v. Pennsylvania R.R. Co. (1966), 34 Ill. 2d 367, 215 N.E.2d 236; Babcock v. Chesapeake & Ohio Ry. Co. (1979), 83 Ill. App. 3d 919, 404 N.E.2d 265.

For the reasons stated, the order of the trial court is reversed and the cause remanded for a new trial consistent with the views expressed herein.

Reversed and remanded.

JOHNSON and LINN, JJ., concur.