author: JUSTICE McLAREN

text:
    JOHN M. WEST, Adm’r of the Estate of Willie D. West, Plaintiff-Appellant, v. MARTIN BOEHNE et al., Defendants-Appellees.
    Second District
    No. 2—91—0964
    Opinion filed June 17, 1992.

      Robert A. Clifford, Keith A. Hebeisen, and Jeffrey J. Kroll, all of Robert A. Clifford & Associates, of Chicago (Robert P. Sheridan, of counsel), for appellant.
    Michael C. O’Neill, of Law Offices of John R. Wienold, Ltd., of Aurora (John R. Wienold, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, John West, as administrator of the estate of Willie West, appeals from a jury verdict in the circuit court of Kane County favoring defendant, Martin Boehne, in a negligence action arising out of a collision between decedent’s step van and a field cultivator being towed behind a tractor driven by Boehne. Plaintiff’s sixth amended complaint alleged that the wrongful death of decedent resulted from Boehne’s negligence. The alleged liability, if any, of the other remaining defendants was due to the principle of respondeat superior. Because we determine Boehne is not liable, we need not discuss the other defendants’ liability. The issues raised on appeal are: (1) whether the trial court erred in not directing a verdict for plaintiff or granting plaintiff’s motion for judgment n.o.v.; (2) whether the verdict is contrary to the manifest weight of the evidence; (3) whether plaintiff was denied a fair trial by misleading defense arguments, and the trial court’s failure to prohibit them; (4) whether plaintiff was denied a fair trial because he was erroneously barred from presenting his theory of liability; (5) whether plaintiff was denied a fair trial by the trial court’s admonitions to a plaintiff’s witness; (6) whether plaintiff was denied a fair trial by an improper jury instruction; and (7) whether plaintiff was denied a fair trial by the court’s sending in a Prim charge before it appeared that the jury was deadlocked, and without consultation with counsel for the parties. (People v. Prim (1972), 53 Ill. 2d 62.) We affirm.

On May 31, 1986, Willie West was driving a step van in an easterly direction on Route 38, a two-lane highway in rural Illinois. Boehne, driving a tractor with an agricultural field cultivator in tow, was proceeding in the opposite direction on Route 38. West’s step van and Boehne’s field cultivator collided as they passed each other on a bridge. West died as a result of the accident. The walls of the bridge are 3 feet 10 inches in height. The width of the road spanning the bridge is approximately 30 feet from curb to curb. The respective lanes measure 11 feet 8 inches from the outer fog line to the inner double yellow lines leaving approximately 3 feet 4 inches from the outer fog line to the curb.

West’s step van was 6 feet 6 inches wide and 17 feet 9 inches long. The tractor driven by Boehne measured approximately 12 feet wide and approximately 12 feet high. The cultivator measured 16 feet 9 inches wide when in transport mode and approximately 8 feet high. Boehne testified that his rate of progress over the bridge was approximately 10 miles per hour. The maximum speed of the tractor without the cultivator was between 15 and 18 miles per hour.

Kevin Pazin was a witness to the collision. Kevin testified that he was driving behind the cultivator on the day in question and that the accident occurred at approximately 4:15 p.m. on a clear sunny day. Kevin testified that the cultivator extended two to three feet over the center line. Eugene Pazin, who was also in the car at the time, testified that the cultivator extended three to four feet over the center line. However, on cross-examination, Eugene recalled having given an earlier statement in which he said that the cultivator was across the center line by only one to two feet.

Howard Eugene McKiness, an officer investigating the accident, testified that Kevin reported having seen the van swerve into the cultivator. At trial, Kevin explained that what he told the investigating officer was that the van swerved after colliding with the cultivator. Kevin and Eugene both testified that the van was in its own lane at the time of the collision.

Michael Probst, the owner of the cultivator, testified that Boehne always operated flashing yellow lights located on the tractor when operating the machine on the highway. Boehne also testified that he had activated the flashing yellow lights on the day of the accident.

Plaintiff first asserts that he is entitled to a judgment n.o.v. or a new trial on the grounds that the judgment for defendants was against the manifest weight of the evidence. The basic premise of plaintiff’s argument is that it is per se negligence to collide with an oncoming vehicle on its own side of the road and, therefore, a verdict favoring defendants cannot stand.

In Illinois, the present law is that a plaintiff will be barred from recovering damages:

“[I]f the trier of fact finds that the contributory fault on the part of the plaintiff is more than 50% of the proximate cause of the injury or damage for which recovery is sought. The plaintiff shall not be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is not more than 50% of the proximate cause of the injury or damage for which recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of fault attributable to the plaintiff.” (Ill. Rev. Stat. 1991, ch. 110, par. 2-1116.)

This recitation of the law of Illinois reflects what is known as the “modified” form of comparative negligence. The modified comparative negligence statute became effective on November 25, 1986, and applies to negligence actions arising after that date. In the present case, the cause of action accrued on May 31, 1986, because a wrongful death action accrues at the time of death. (Fetzer v. Wood (1991), 211 Ill. App. 3d 70.) Therefore, the “pure” comparative negligence law applies.

Under the “pure” form of comparative negligence, the plaintiff’s damages are simply reduced by the percentage of fault attributable to him. (Alvis v. Ribar (1981), 85 Ill. 2d 1, 25.) Thus, a plaintiff who is 90% negligent still may collect a proportional share of damages commensurate with the remaining negligence attributable to defendant. As a result, neither party escapes liability from his own negligent acts or omissions. (Alvis, 85 Ill. 2d at 26.) In the present case, the jury apparently found an absence of liability on Boehne’s behalf.

In order to prevail on a negligence claim, a plaintiff must show a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by the breach. (Holbrook v. Peric (1984), 129 Ill. App. 3d 996, 999.) In addition, in order to recover for wrongful death, a plaintiff must prove that the alleged negligence caused the death of the decedent. Hare v. Foster G. McGaw Hospital (1989), 192 Ill. App. 3d 1031, 1034.

Plaintiff places much reliance on the case of Walling v. Lingelbach (1976), 65 Ill. 2d 244. In Walling, two vehicles proceeding in opposite directions on a highway collided with each other. The principal cause of this accident was that the southbound vehicle, driven by Lingelbach, crossed over the center line and struck the northbound vehicle driven by Strahorn. Lingelbach and Strahorn were codefendants in a suit filed by Helen Walling, a passenger in Strahorn’s vehicle. On appeal, the appellate court reversed, without remand, holding that the evidence was insufficient to sustain any verdict for Walling against Strahom. Our supreme court affirmed this holding. Physical evidence supported the conclusion that the accident occurred by the eastern shoulder of Strahorn’s lane. Plaintiff here attempts to read the Walling court’s holding as a declaration that “presence” in another lane is per se negligence. We determine that plaintiff’s reading of Walling is misguided.

First, the facts of Walling are distinguishable because the codefendant in Walling remained in her lane. Here plaintiff alleges that defendant was outside of his own lane. Second, the reasoning of Walling does not support plaintiff’s positions. The codefendant in Walling was found not liable because she did not proximately cause the accident. As primary evidence of this finding, the court asserted that the controlling issue was that the accident occurred in her own lane. (Walling, 65 Ill. 2d 244.) In stating the controlling issue, the court did not purport to set forth a rule that “presence” in another’s lane is per se negligence. Instead, the court simply determined that, absent other evidence tending to show Strahorn’s negligence, she could not be held liable for an accident occurring in her own lane. Therefore, plaintiff is in error to use Walling to support his claim that it is per se negligence to be in another’s lane of traffic.

Plaintiff also asserts Boehne is negligent in that State law requires vehicles to drive on the right half of the road. (Ill. Rev. Stat. 1985, ch. 95½, par. 11 — 701.) While we agree with plaintiff’s contention that the Illinois Vehicle Code prohibits the operation of motor vehicles in oncoming traffic lanes under most circumstances, we point out that section 15 — 101(b) makes provision for temporary transport of implements of husbandry in tow. Section 15 — 101(b) states in relevant part:

“The provisions of this Chapter governing size, weight and load do not apply to *** implements of husbandry temporarily operated or towed in a combination upon a highway provided such combination does not consist of more than 3 vehicles ***.” (Ill. Rev. Stat. 1985, ch. 95½, par. 15 — 101(b).)

Thus, as we have already stated in a related case, the temporary transport of wide loads, such as the cultivator, upon the public highways not only was contemplated by the State but also was specifically authorized. (West v. Deere & Co. (1990), 201 Ill. App. 3d 891, 901.) Therefore, we cannot hold that defendants’ mere “presence” in the opposite lane proximately caused the collision. Neither can we say, in light of section 15 — 101(b) that the cultivator’s “presence” in the oncoming traffic lane necessarily constitutes a violation of section 11— 701.

The question of whether a defendant’s conduct proximately caused a plaintiff’s injury is one for the trier of fact. (Turner v. Roesner (1990), 193 Ill. App. 3d 482, 488.) We can only grant plaintiff a judgment n.o.v. if all the evidence, when viewed in the aspect most favorable to defendant, so overwhelmingly favors plaintiff that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) Viewing the facts adduced at trial in the light most favorable to defendants, we determine that the jury’s verdict was reasonable because sufficient evidence exists to support a finding that defendants did not proximately cause the collision.

Plaintiff presented evidence that visibility on the bridge was reduced because of a curve in the bridge itself and because of obstruction of view presented by the walls of the bridge. However, Officer McKiness testified that he had not experienced problems with visibility on the bridge when proceeding from west to east. Other evidence shows that the “curve” is very slight and covers a substantial distance. The height of the tractor and the cultivator was also shown to be significantly higher than the height of the walls of the bridge. In this vein, testimony was provided showing that, in spite of the bridge walls, an attentive driver would have been able to see the farm implement as one approached it, because of the height discrepancy described above. Furthermore, the tractor was proceeding at a very low rate of speed and in a constant unwavering course. Testimony was also provided showing that the tractor was outfitted with reflectors and operating flashing lights at the time of the accident.

In addition, the measurements of the bridge and the vehicles adduced at trial indicate that Boehne drove the tractor such that the cultivator was one foot from the outer curb on Boehne’s side of the road. As a result, the cultivator necessarily hung over the center line by approximately three feet. If decedent had also driven his vehicle one foot from his own curb, he would have approximately seven feet two inches remaining between the outside of his van to the outside portion of the cultivator.

Given this evidence, a jury could reasonably find that it was plaintiff’s failure to use due care in approaching the farm implement that proximately caused the collision. Indeed, a driver proceeding in his own lane is still under a duty to exercise due care to avoid a collision with a driver proceeding on the wrong side of the road. (Turner, 193 Ill. App. 3d at 488.) Therefore, neither a judgment n.o.v. nor a directed verdict would be proper when there is evidence supporting a finding that defendant did not proximately cause the collision. To hold otherwise would be to condone negligent or reckless conduct when such circumstances, in reality, require the exercise of due care. It was for the jury to decide whether such recklessness existed and whether it resulted from decedent’s inability to control his vehicle in the face of a cognizable danger.

Plaintiff next asserts that he was denied a fair trial due to defense counsel’s misconduct and trial court error. First, plaintiff asserts that prejudice occurred as a result of defense counsel’s claim, made at several points throughout the trial, that the cultivator had a “right” to use the highways of the State of Illinois. Plaintiff also asserts error in the court’s behalf due to its denial of plaintiff’s motion in limine which sought to prevent defendant from stating that he had a “right” to be where he was at the time of the occurrence. Because plaintiff failed to make citations to the record with respect to the location of these comments, we will rely only upon those locations specified by defendant.

The statements made by defense counsel simply assert that as an implement of husbandry, the cultivator had the right to be present upon the highways of this State. We see nothing in defense counsel’s statements that would indicate that Boehne had a right to operate the machinery in a negligent manner. We cannot accept plaintiff’s argument that the disputed statements were tantamount to a claim that there was no negligence on Boehne’s behalf. In our view, section 15— 101(b) unambiguously authorizes the use of oversized implements of husbandry upon the highways of this State. Therefore, we find nothing misleading about the use of these statements, nor do we find error in the trial court’s refusal to bar the admission of the same.

Plaintiff next asserts error due to the trial court’s refusal to allow plaintiff to present a theory that defendant was negligent in failing to proceed on an alternate route which would have avoided the transportation of the cultivator on a bridge. The trial court granted defendants’ motion in limine barring plaintiff from introducing any evidence or argument in support of this theory. The trial court, in granting the motion, noted that proof of negligence is related to the size of the vehicle and the particular road in question rather than to the availability of alternative routes. The court’s concern was that to allow such evidence would open the door to arguments asserting liability for failure to engage in a myriad of possible behaviors which could have prevented the collision.

Plaintiff asserts that the presence of a safer mode of alternative conduct has always been a relevant consideration in Illinois on the issue of negligence. To support this proposition, plaintiff cites Seigel, Cooper & Co. v. Becker (1899), 83 Ill. App. 600. In Seigel, the plaintiff proceeded into the basement of defendant’s store in order to retrieve an item from defendant’s boiler room. His pathway to the boiler room was a proper one; however, he took an alternate route on his return. This alternative route took plaintiff through a dangerous area of the basement where plaintiff was subsequently injured. The court in Seigel declared that it was the plaintiff’s duty to take such care for his own personal safety as an ordinarily careful and prudent person would take under like circumstances. (Seigel, 83 Ill. App. at 602.) The court held that a person may not recover damages for the consequences of his own “heedlessness.” As applied to the present case, we determine that the Seigel court’s warning against “heedlessness” would bar plaintiff’s recovery where the evidence indicates that it was decedent who did not apply due care when approaching a cognizable danger on the highway such as a large tractor pulling a farm implement.

Plaintiff also cites Klimovich v. Crutcher (1965), 57 Ill. App. 2d 444, for the proposition that available alternative routes should be taken when they are known to be safe. In Klimovich, plaintiff proceeded across a street by foot when he was injured by an oncoming vehicle. A directed verdict was entered in favor of defendant because the court determined that plaintiff should have crossed the road by taking an overpass a short distance away which would have practically assured his safe progress. The court held that, in a place of great danger, an individual cannot remain oblivious to an available alternative course of known safety which is but a short distance away. The basis of the court’s decision was that a reasonably cautious person would have taken into consideration the alternative route in the exercise of due care for his own safety. Klimovich, 57 Ill. App. 2d at 451.

Again, this reasoning directly applies to decedent’s own negligence in failing to respond to a perceived danger blocking his passageway on the road rather than Boehne’s justification in choosing a route which he was legally entitled to take. Moreover, we point out that the alternative routes available to Boehne in the present case were not necessarily known to be safe.

In sum, absent further evidence that Boehne’s course of action was one involving obvious and unreasonable danger to which he did not respond, the admission of evidence of an alternative course of conduct is not appropriate. The determination of the admissibility of evidence rests in the sound discretion of the trial court and will not be reversed unless that discretion has been abused. (Country Mutual Insurance Co. v. Adams (1980), 85 Ill. App. 3d 501.) We do not find that the trial court abused its discretion on this issue.

Plaintiff next argues that the trial court erred when it informed a witness of her right to retain an attorney when it became apparent that the witness was making statements that were self-incriminating. As a part of the damages case, plaintiff sought to introduce evidence concerning the decedent’s employment. B.D. was an employee at decedent’s place of work. On cross-examination, B.D. began to testify that decedent’s wife, although not an employee of the business, was receiving checks made out to her rather than her husband. In the jury’s presence, the court made the following statement:

“At this time I have to advise the witness that she has a right not to testify. Any testimony that you might give — and this is before the jury, and it must be made before the jury-might be self-incriminating insofar as the violation of a federal law. You have a right to an attorney. You need not testify further in this proceeding because anything that you might say might incriminate yourself.
You have a right to exercise that right under the State and Federal Constitution as to whether or not you might have done anything with respect to the books in connection with payment to another party for services performed by the decedent in this case or issues which you need not be questioned about nor which you might give answers to.
You have a right to consult with an attorney, and you have a right to exercise all rights guaranteed to you by the Constitution of the State of Illinois. It’s your freedom to exercise that right at this time and consult with an attorney. Should you choose to do so, you may step down and consult with your own personal attorney.”

Plaintiff asserts that this warning indicated, beyond all doubt, that the trial court believed B.D. was a criminal. We have great difficulty accepting this interpretation of the situation.

First, it should be noted that this witness was not testifying as to issues regarding defendant’s liability, but only as to damages. Since the jury never reached the issue of damages in its verdict, it is hard to see how plaintiff was prejudiced by the court’s statement. Second, it is well within the court’s discretion to advise a witness of her right not to incriminate herself. (People v. Pantoja (1976), 35 Ill. App. 3d 375, 380.) Thus, we find no error.

Plaintiff finally presents two objections to instructions that the trial court below presented to the jury. The first instruction reads as follows:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
(b) Upon all roadways any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane available for traffic, or as close as practicable to the right-hand curb or edge of the roadway.
If you decide that the defendants complied with or violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether and to what extent, if any, the defendants were negligent before and at the time of the occurrence.”

Plaintiff argues that the tendency of this instruction was to create the impression that, if Boehne was driving as close as was practicable to the right-hand curb, he had fulfilled his duty of care. Plaintiff also asserts that the purpose of this statute is to mandate that slower traffic keep to the right so that it may be more easily passed by vehicles moving at the normal speed in the same direction. We find nothing in the language of the statute itself or in the authority cited by plaintiff which would support a conclusion that this statute is only intended to apply to situations of same-side passing. The fact that plaintiff alleged negligence on the part of Boehne for his presence in the opposite lane implies that Boehne was not sufficiently to the right side of his own lane. Therefore, the court’s instruction on this issue was relevant and justified by the evidence presented. The general rule is that a court must instruct a jury on all issues reasonably presented by the evidence. (Lounsbury v. Yorro (1984), 124 Ill. App. 3d 745.) Moreover, the jury was directed to consider this instruction along with all other facts and circumstances. Thus, we determine that the instruction did not confuse or mislead the jury.

Plaintiff next asserts that the trial court committed error when it presented Illinois Pattern Jury Instruction, Civil, No. 1.05 (3d ed. 1992) (hereinafter IPI Civil 3d) to the jury without conferring with and outside the presence of counsel. This instruction provides the following:

“The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree to it. Your verdict must be unanimous.
It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.
You are not Partisans. You are judges — judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.”

In the present case, a short time after retiring for deliberation an inquiry was sent from the jury to the trial judge asking whether its verdict needed to be unanimous. The trial judge answered in the affirmative and submitted the IPI instruction. Plaintiff asserts error in the trial court’s submission of this instruction in that the notes for IPI Civil 3d No. 1.05 state that counsel and the court reporter should be present when the instruction is given. Plaintiff then cites City of Mound City v. Mason (1914), 262 Ill. 392, for the proposition that it is reversible error for the trial judge to communicate with the jury outside the presence of counsel. Defendant argues that this strict rule no longer applies and that, today, the test is whether the trial court’s communication with the jury was calculated to influence the verdict of the jury and whether prejudice occurred as a result of this communication. We agree with defendant.

In Mound City, at the request of the jury and in the absence of counsel, the judge went into the jury room and made oral answers to several questions asked him by the jury in regard to the appellant’s rights. Our supreme court, holding that it was error for which the judgment would be reversed, asserted that a trial judge should hold no communication with the jury in regard to the instructions in the case except in open court. (Mound City, 262 Ill. 392.) The policy behind the requirement of open and notorious communications is that a party should be able to take exception to communications as they occur. Mound City, 262 Ill. at 399.

In later years, our supreme court shied away from this strict rule and, instead, began to examine more closely the intent and impact of such communications. For example, in People v. Tilley (1952), 411 Ill. 473, the court announced the general rule that prejudice will not automatically be presumed in cases of unobserved communications between judge and jury. The court stated that the cardinal test is whether the invasion was calculated to influence the verdict of the jury or whether some injury resulted from the communication. We are bound by this reasoning.

Authority which is more recent than that supplied by plaintiff supports the proposition that some prejudice must have occurred before a verdict will be overturned. Defendant cites People v. Plantinga (1985), 132 Ill. App. 3d 512, 521, for the proposition that the trial court has much discretion on the matter of issuing a Prim instruction. Although there is no evidence that the instruction in Plantinga was given outside the presence of counsel, we determine that the case is still relevant. The court in Plantinga made the following statements with respect to the Prim instructions:

“The trial court has great latitude as to when a Prim instruction should be given. [Citation.] The test is whether, upon examination of all the facts, the language used in the instruction coerced or interfered with the deliberation of the jurors to the prejudice of the defendant or hastened the verdict. [Citation.] There is less danger of coercion when the instruction is given to a jury which has not reached a deadlock.” Plantinga, 132 Ill. App. 3d at 521.

Indeed, the Prim instruction itself was designed to help the jury through a deadlocked situation without coercing it or prejudicing defendant. (Prim, 53 Ill. 2d 62.) More recent cases held that the timing of the Prim instruction lies within the discretion of the trial court. (People v. Craddock (1987), 163 Ill. App. 3d 1039, 1045.) In that the Prim instruction itself was designed to avoid prejudice, we cannot see how the plaintiff was in any way injured by submission of this instruction in the present case. Plaintiff presents no evidence that the trial court used the instruction in order to coerce a verdict, nor does plaintiff present argument as to how such prejudice may have occurred. Plaintiff asserts that it was error for the trial court to submit the instruction when the jury had not yet declared itself deadlocked. However, a Prim instruction may be given to a jury which is not in fact deadlocked. (Craddock, 163 Ill. App. 3d at 1045.) In the present case we do not see how plaintiff’s inability to object to the presentation of the Prim instruction prejudiced his case. Therefore, we cannot accept plaintiff's blanket assertion that all communications between judge and jury in the absence of counsel should result in a retrial.

Admittedly, the notes for IPI Civil 3d No. 1.05 set forth guidelines as to how the instruction should be administered. However, the language in the notes is neither mandatory in nature nor authoritative in substance. Therefore, although it may have been better for the court below to deliver the instruction after conferring with counsel, we will not reverse in the absence of a showing of prejudice.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

UNVERZAGT and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DOYLE

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THEODORE PSICHALINOS, Defendant-Appellant.
    Second District
    No. 2—90—0990
    Opinion filed June 17, 1992.

      G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

The defendant, Theodore Psichalinos, was charged by amended information in the circuit court of Kane County with one count of aggravated battery of a child (Ill. Rev. Stat. 1989, ch. 38, par. 12— 4.3(a)) and one count of battery (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 3(a)). Following a bench trial, the trial court found the defendant guilty of aggravated battery of a child, dismissed the battery count and sentenced the defendant to seven years in prison.

The defendant raises the following issues on appeal: (1) whether the trial court erred in considering evidence of two separate acts by the defendant to find him guilty of the single offense of aggravated battery of a child; (2) whether the State failed to prove beyond a reasonable doubt that the victim sustained great bodily harm; and (3) whether the trial court erred in applying the doctrine of transferred intent.

The following facts are relevant to our disposition of the issues. The defendant was originally charged by information with aggravated battery of a child. The State subsequently amended the information to add a count for battery. Immediately prior to trial commencing, the State orally amended the aggravated battery of a child charge to replace the word “intentionally” with “knowingly.” The defendant did not object to the oral amendment.

Dr. Antun Lesica, an emergency room physician, testified that while employed in the emergency room of Saint Joseph’s Hospital on February 25, 1990, he examined the victim, Victor Alsen. He X-rayed Victor’s nose, which X ray showed an undisplaced fracture of the nasal bone at the tip of the nose. According to Dr. Lesica, the injury was consistent with some type of traumatic impact. It was his opinion that it is possible for a nose to be broken without displaying bruising or other evidence of external injury. Dr. Lesica testified that he administered no treatment, nor was treatment indicated. He did not know how long the fracture had existed and had no way of telling whether the fracture was one day or six months old. On redirect examination, however, he explained that if the fracture had been six months old it would have healed. The fracture appeared to him to be recent.

Lena Alsen, Victor’s mother, testified that Victor was three years old and that the defendant is his father. The defendant was 31 years of age and had lived with Ms. Alsen intermittently for approximately four years.

On the morning of February 18, 1990, the family awoke, and the defendant prepared breakfast. Ms. Alsen was in the front room with her baby, and the defendant was in the kitchen with Victor and Victor’s four-year-old brother, Robert Alsen. She heard the defendant tell Victor to eat his eggs or the defendant was going to whip him. She went into the kitchen and told the defendant to let Victor eat what he could and not to force him to eat everything.

After returning to the baby in the other room, she heard Victor start screaming and crying. Victor went into the bathroom and was vomiting. The defendant then said, “I don’t play that game. Get back in the kitchen and eat your breakfast that I made.” Prior to Ms. Al-sen returning to the baby, the defendant obtained his belt, entered the kitchen, and told Victor he would whip him with the belt if he did not return to the table. After she told the defendant to put the belt down, he replaced it in a drawer.

She again returned to the baby in the other room and heard three “smacks” which sounded like someone slapping a cheek. She then heard Victor screaming, “no, daddy, no, daddy, don’t hit me.” She went into the kitchen and observed Victor with his arm up saying, “no, daddy, no, daddy.” She pushed the defendant out of the way and saw blood coming from Victor’s nose. The blood was also by his mouth and chin. She asked Victor what happened, and he answered that, “daddy hit him.” She then pushed the defendant and said that she knew he had broken Victor’s nose. The defendant responded that they were his kids and that he should feel free to hit or smack them.

Ms. Alsen then went to call the police, but the defendant ripped the telephone out of the wall and threw it into the front room. When she tried to go to the back door to get to the neighbors, he started punching her. Later that afternoon, she argued with the defendant about her wanting to leave to get cigarettes. She was sitting on a bed, and the defendant came in with a comb and a brush in his clenched fist. He swung at her, and she moved her leg to avoid being hit. Victor was on the edge of the bed watching television, and the defendant hit him on the side of the nose with the errant swing. Victor fell on the floor. When he got up he had blood running from his nose to his mouth and chin, and he was crying. When she attempted to leave the apartment to call the police, the defendant dragged her back inside and started pounding on her. According to Ms. Alsen, after she cleaned Victor, she did not notice anything unusual about his nose. The following day, she observed a purple, red and yellow mark under his left eye. The bruise lasted a day or two and then began to fade.

On February 25, 1990, she was ordered by the police to take Victor to the hospital. She delayed that long in doing so because the defendant kept her locked up and would beat her every time she would go to the front door. According to Ms. Alsen, Victor never tripped or fell on anything between February 18 and February 25, 1990.

On cross-examination, Ms. Alsen testified that defendant was employed as a roofer and normally worked days. She stated that she could not take Victor to the hospital without transportation, but she did so at the suggestion of the police. She called the police on February 25 because the defendant had called her from his sister’s home and threatened to bring a gun home. She had called his sister’s about four times that day to determine when the defendant was coming home so she could have the children sleeping when he arrived.

According to Ms. Alsen, there were about 10 police officers who came to her apartment. She told the police about the defendant striking Victor in the nose, but they did not detain the defendant. On the following day, the police returned to the apartment with a State investigator and arrested the defendant.

Four-year-old Robert Alsen testified that he remembered the day when Victor did not eat his eggs. He stated that Victor got a broken nose when the defendant punched Victor in the nose. Robert demonstrated what happened by forming a fist with his right hand and putting it over his nose. He further testified that the defendant used a closed hand. When asked what Victor did, Robert replied that he would not eat his eggs. Blood came from Victor’s nose, and Victor cried when the defendant punched him in the nose.

On cross-examination, Robert testified that he was told what to say by his mother and the assistant State’s Attorney. On redirect examination, he stated that his testimony was based on what happened and what he observed.

Theresa Gordon, a neighbor of the defendant’s at the time of the incident, testified that she was at the defendant and Ms. Alsen’s apartment on February 18, 1990. The defendant and Lena Alsen were arguing, and the defendant attempted to hit Ms. Alsen. When Ms. Al-sen moved, the defendant hit Victor with a closed fist. Later that week, Gordon observed a deep blue bruise on the side of Victor’s nose.

Joseph Schlosser, a child protective investigator with the Department of Children and Family Services (DCFS), testified that he observed Victor Alsen on February 26, 1990, at the Alsens’ residence. Victor had faint yellow bruising around both of his eye orbits and nose.

Following the denial of the defendant’s motion for a directed finding, John Miller testified on behalf of the defendant that he accompanied the defendant to the defendant’s apartment on the evening of February 25, 1990. According to Miller, three police officers arrived shortly thereafter. One of the officers became upset with Lena Alsen and asked her why she had not taken Victor to a doctor. She responded that she was going to do it tomorrow. The officer told the defendant he did not have to leave, but the defendant said he would rather go.

Dawn McKiness, the defendant’s sister, testified that, from the time defendant arrived at her house on February 25 until the middle of the night, Lena Alsen telephoned about 40 to 50 times. She made more telephone calls the next morning.

On cross-examination, Ms. McKiness testified that her relationship with Lena Alsen was not the greatest. Ms. McKiness admitted to having been convicted of the unlawful possession of a controlled substance in 1989 and of felony theft approximately 10 years prior to trial. The defendant recalled Ms. McKiness, who testified that the defendant came to her apartment on February 18, 1990, accompanied by Victor. There was nothing unusual about or wrong with Victor, and he was laughing and talking to her.

The defendant testified that on February 18, 1990, he and Victor were playing in the boys’ room when Victor tripped on exposed carpet staples and fell on his nose on the hardwood floor. Victor’s nose had a little drop of blood under it; the defendant wiped it off, and it stopped bleeding. The defendant denied striking Victor at any time on February 18 or on any other day.

The defendant was home part of each day of the week from February 18 to February 26, 1990, although he was not there all of the time. He did not notice any signs of any kind of injury to Victor’s nose or any swelling or discoloration. Victor did not complain about his nose during that week.

On cross-examination, the defendant stated that Victor ate his eggs on the morning of February 18, 1990, and he denied that Victor threw up. He further denied ever hitting the children with a belt. He also denied fighting with Lena Alsen on February 18 or having argued with her.

On rebuttal, Lena Alsen stated that the defendant and John Gordon had removed all of the carpet staples from the boys’ room prior to February 18, 1990. She denied telephoning Dawn McKiness approximately 40 times on the evening of February 25 and also denied calling her in the middle of the night.

On cross-examination, Ms. Alsen stated that the week following February 18 the defendant was home 24 hours a day and never left the house. On redirect examination, she admitted that there were times when he did step out to the neighbors for a few minutes. She also testified that the defendant did not work that week. Upon being questioned by the court, Ms. Alsen stated that the defendant did not go to his sister’s on February 18 and that he remained at home the entire day.

The defendant testified in surrebuttal that he was away from the home everyday for at least an hour or two during the week of February 18 to February 25, 1990.

In issuing his oral decision, the trial judge stated that he did not “consider the crack in the nose whether it was caused or not caused by what happened on the 18th of February all that significant.” The judge further stated that he was “not really relying too much on the mother’s testimony” but that he was relying on Theresa Gordon’s testimony. The court also relied on the testimony of Robert Alsen concerning the defendant hitting Victor with his fist for not eating his eggs. Finally, the court added that Schlosser’s testimony that Victor had a bruise on his face a week later evidenced great bodily harm regardless of whether the defendant fractured Victor’s nose. The court found the defendant guilty of aggravated battery of a child and dismissed the battery charge as being a lesser-included offense.

The defendant filed a written, post-trial motion asking the court to set aside the finding or to order a new trial. In that motion, the defendant contended, among other things, that the State failed to prove him guilty beyond a reasonable doubt and that there was no credible evidence that the victim suffered great bodily harm or that the victim sustained an injury as a result of any specifically intended action by the defendant.

At the hearing on the defendant’s post-trial motion, the State argued that the defendant’s intent to hit Lena Alsen was transferred to Victor. The defendant responded that transferred intent does not apply to a specific intent offense. He further maintained that an injury has to be specifically and intentionally inflicted on a child and that transferred intent is inapplicable in this case. In denying the motion, the trial court stated that there was no question that the defendant “intended to hit somebody.”

At the sentencing hearing, the judge added that he viewed the fact that the defendant hit Victor with his fist for not eating his eggs as more serious than attempting to hit Lena Alsen and hitting Victor. The court further explained that “[i]f that’s all there was, I may not have found you guilty. But on the not eating eggs incident, that I do find a little bit more serious than swinging at somebody and missing her and hitting somebody else.” The court sentenced the defendant to seven years’ imprisonment on the aggravated battery to a child conviction.

The defendant first contends that the trial court erred in finding him guilty of a single offense based upon evidence of two separate acts that cumulatively resulted in the victim’s injuries. The defendant maintains that the evidence of great bodily harm, if any, occurred after the second incident and that the finding that he acted knowingly was based on the erroneous application of transferred intent to the second incident. Finally, he argues that the use of evidence of the two separate incidents violated the philosophy of the one act/one crime doctrine. The State responds initially that the issue is waived because the defendant did not challenge the information, failed to object at trial and did not include the issue in his post-trial motion.

In either a bench trial or a jury trial, in order to properly preserve issues for appeal, a defendant is required to make both a trial objection and a written, post-trial motion raising the issues if the alleged errors could have been raised during trial. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) Even if the error could not have been raised during trial, the alleged error must be presented in a written, post-trial motion. (Ill. Rev. Stat. 1989, ch. 38, par. 116 — 1; see Enoch, 122 Ill. 2d at 187.) Failure to comply with the statutory requirement of filing a post-trial motion or to raise an issue in the post-trial motion limits our review to constitutional issues which have properly been raised at trial and which can be raised later in a post-conviction hearing petition, sufficiency of the evidence issues, and plain error. See Enoch, 122 Ill. 2d at 190.

In the present case, the defendant did not raise the issue he now presents on appeal in his written, post-trial motion. He maintains, however, that we should nevertheless consider the issue as plain error. The plain error doctrine may be invoked in a criminal case to review an error which has not been properly preserved for review if either the evidence is closely balanced or the error is of such magnitude that the defendant was denied a fair trial. (People v. Nitz (1991), 143 Ill. 2d 82, 108.) The plain error rule prevents an innocent person from being convicted because of error which is obvious from the record but not properly preserved. (Nitz, 143 Ill. 2d at 108.) We believe that, if in fact the trial court erroneously combined the evidence of both incidents in finding that the State had proved the elements of aggravated battery against a child, such error would have denied the defendant a fair trial. We will, therefore, consider the issue notwithstanding the defendant’s failure to raise it in his written, post-trial motion.

Accordingly, we turn to the merits of the defendant’s claim that it was improper for the trial court to combine the evidence of the two incidents to find proof beyond a reasonable doubt of the single offense of aggravated battery of a child. The defendant cites no authority to support this contention, other than cases addressing the issue of whether a series of acts were sufficiently separate to charge a defendant with multiple offenses. (See People v. Segara (1988), 126 Ill. 2d 70; People v. King (1977), 66 Ill. 2d 551.) Those cases are inapplicable, however, as the defendant here was charged with only one count of aggravated battery of a child and one count of the lesser-included offense of battery.

Section 12 — 4.3(a) provides, in pertinent part, that “[a]ny person of the age 18 years and upwards who intentionally or knowingly, and without legal justification and by any means, causes great bodily harm or permanent disability or disfigurement to any child under the age of 13 years *** commits the offense of aggravated battery of a child.” (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4.3(a).) Count I of the information, as amended, charged that on or about February 18, 1990, the defendant, “a person over the age of 18 years, [knowingly] and without legal justification caused great bodily harm to Victor Alsen, a chiLd [sic] under the age of 13 years, in that he struck Victor Alsen in the face causing a fractured nose.”

Under these circumstances, it was not error for the court to have considered evidence of both incidents in finding the State proved the defendant guilty beyond a reasonable doubt of the offense as charged. Both incidents occurred on the date in the information. Both incidents involved the same victim, Victor Alsen. Furthermore, both incidents involved the defendant striking Victor in the face. The defendant was adequately informed of the crime for which he was charged (see People v. Thomas (1990), 137 Ill. 2d 500, 521-23), and the evidence of both incidents was properly considered by the trial court as being relevant to the aggravated battery of a child charge.

Having concluded that it was proper for the trial court to have considered evidence of both incidents to find the defendant guilty of aggravated battery of a child, we must next consider the issue of whether the doctrine of transferred intent is applicable to the circumstances of the second incident. This is so because if transferred intent does not apply, then the defendant’s striking of Victor Alsen the second time must be viewed as an accidental act and cannot properly be considered as evidence of aggravated battery of a child. The defendant argues that aggravated battery of a child is a different crime from aggravated battery and battery because of its additional element that the victim be a child under 13 years old, and, therefore, the intent necessary for the latter two offenses cannot be transferred to the former.

Section 12 — 4 provides that “[a] person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery.” (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(a).) As discussed earlier, section 12 — 4.3(a) provides that a person over the age of 18 who “intentionally or knowingly, and without legal justification and by any means, causes great bodily harm or permanent disability or disfigurement” to a child under 13 commits aggravated battery of a child. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4.3(a).) The defendant here was charged with having acted knowingly. We have previously held, in the context of the aggravated battery statute, that when a statute is defined in terms of a particular result, a person is said to act knowingly when he is consciously aware that his conduct is practically certain to cause the result. (People v. Herr (1980), 87 Ill. App. 3d 819, 821; see Ill. Rev. Stat. 1989, ch. 38, par. 4 — 5(b).) Thus, under the aggravated battery statute, a defendant, if he has been charged with acting knowingly, must be consciously aware that his conduct is practically certain to cause great bodily harm.

The offense of aggravated battery of a child has the same provision concerning knowledge and causing great bodily harm as the aggravated battery statute. It is defined in terms of a particular result. Section 4 — 5(b) should apply equally, therefore, in requiring that a person, to act knowingly, must be consciously aware that his conduct is practically certain to cause the result. Accordingly, the mental state of knowledge is the same as to both the offense of aggravated battery based on great bodily harm to an adult and the offense of aggravated battery of a child.

That brings us to the precise question of whether such a mental state can be transferred in this case. In People v. Hickman (1973), 9 Ill. App. 3d 39, the court stated that “[o]ne who does an unlawful act is liable for the consequences even though they may not have been intended.” (9 Ill. App. 3d at 44.) Where someone in the commission of a wrongful act commits another wrong not intended, or where in the execution of an intent to do wrong, an unintended act resulting in a wrong ensued as a natural and probable consequence, the one acting with a wrongful intent is responsible for the unintended wrong. (Hickman, 9 Ill. App. 3d at 44; see People v. Frazier (1977), 53 Ill. App. 3d 884, 888.) We believe the doctrine enunciated in Hickman is broad enough to encompass the circumstances present here.

Here, the defendant acted knowingly as to Lena Alsen in that he closed his hand, containing a brush and comb, into a fist and swung his fist at her. It would not have been unreasonable for the trial court to have concluded that the defendant was consciously aware that his conduct was practically certain to cause a particular result, great bodily harm to Lena Alsen. The defendant missed Lena Alsen, however, and struck Victor in the nose with his closed fist containing the comb and brush. The result which his conduct was practically certain to cause, great bodily harm to Lena Alsen, became great bodily harm to Victor. While the defendant’s mental state embraced a wrongful act against Lena Alsen, he committed the wrong against Victor Alsen instead. Under these circumstances, it was proper for the trial court to find that as to the second incident the defendant had the requisite mental state as charged in the information. Consequently, the court could properly consider evidence of the second incident along with the first incident in determining whether the State proved the defendant guilty beyond a reasonable doubt, provided, of course, there was also sufficient evidence that the defendant’s conduct caused great bodily harm to Victor.

The remaining issue, then, is whether the State proved the defendant guilty beyond a reasonable doubt of having inflicted great bodily harm. The defendant argues that the evidence of a bruise on Victor’s face was insufficient to prove great bodily harm. He also asserts that there was insufficient evidence to connect the fracture of Victor’s nose with the conduct of the defendant in striking him.

The infliction of great bodily harm is an essential element of the offense of aggravated battery of a child. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4.3(a).) In the context of aggravated battery, great bodily harm has been held not susceptible of precise legal definition. It requires an injury of a greater or more serious character than ordinary battery. (People v. Figures (1991), 216 Ill. App. 3d 398, 401.) The determination of whether great bodily harm has occurred centers upon the injuries the victim received (Figures, 216 Ill. App. 3d at 401) and does not depend upon whether the victim received medical attention. (People v. Jordan (1981), 102 Ill. App. 3d 1136, 1140.) The question of whether a victim’s injuries constitute great bodily harm is one to be decided by the trier of fact. Figures, 216 Ill. App. 3d at 401.

In this case, the evidence established that after the first incident in which the defendant struck Victor while in the kitchen, Victor’s nose was bleeding and that he cried when the defendant hit him in the nose. Lena Alsen testified that, as a result of the defendant hitting Victor the second time with his fist, Victor’s nose again bled and he fell on the floor and cried. The following day, Victor had a purple, red and yellow mark under his left eye. Theresa Gordon testified that later that week she observed a deep blue bruise on the side of Victor’s nose. Additionally, Joseph Schlosser of DCFS testified that on February 26, 1990, he observed a faint yellow bruise around Victor’s eyes and nose. Moreover, Dr. Lesica testified that Victor had a non-displaced fracture of his nose on February 25, 1990. We believe this evidence cumulatively supports the trial court’s finding that Victor suffered great bodily harm. The fact that Victor was punched twice by an adult which caused his nose to bleed and a bruise to develop that lasted at least a week, coupled with evidence that he suffered a fractured nose, supports this finding.

Even though there was no direct evidence that either of the blows inflicted on Victor by the defendant caused the fracture of his nose, Dr. Lesica’s testimony circumstantially supports such an inference. While he initially testified that he did not know how long the fracture had existed and that the fracture could have been one day old or six months old, he testified on redirect examination that if the fracture had been six months old it would have healed and that it appeared to be recent. Based upon this testimony, it was reasonable to infer that the fracture resulted from one of the two blows administered by the defendant. Our conclusion is unaffected by the fact that Victor was not seen by a doctor until a week after the incidents. The decision of when Victor, a three-year-old child, would receive medical attention for his injuries was controlled by his mother and the defendant and was not dictated by the nature and extent of the injuries. More importantly, the question of whether Victor suffered great bodily harm is independent of whether he received medical attention for his injuries. See Jordan, 102 Ill. App. 3d at 1140.

Even were we to determine that the doctrine of transferred intent did not apply to the second incident, there is sufficient evidence based upon the first incident alone to support the trial court’s finding of guilty. Robert Alsen testified that the defendant punched Victor in the nose with his fist with sufficient force to cause bleeding. The defendant must be deemed to have known that this conduct was practically certain to cause great bodily harm to a three-year-old child.

While denying that he struck any blows, the defendant contends that the witnesses’ testimony concerning his alleged criminal misconduct in attempting to strike Lena Alsen, while clenching a comb and brush in a closed fist, injects a reasonable doubt that the fracture and bruising can be traced to the initial striking incident. There is no reason to doubt, however, that the first blow could have caused the serious bruising of the child’s face and nasal bone fracture. In the absence of any evidence that only the subsequent blow was sufficiently forceful to have produced these effects, the trial court had a reasonable basis for attributing them to the initial striking. The relevant test is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Campbell (1992), 146 Ill. 2d 363, 374; People v. Tye (1990), 141 Ill. 2d 1, 13-14.

We conclude, therefore, that the trial court was not required to disregard evidence of the second incident; however, there was adequate evidence independent of that incident to support the conviction.

For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.

Affirmed.

McLaren and WOODWARD, JJ., concur.


author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM T. LEAHY, Defendant-Appellant.
    Second District
    No. 2—90—0843
    Opinion filed June 11, 1992.

      G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

Following a jury trial, the defendant, William T. Leahy, was convicted of second degree murder. (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2.) He was sentenced to nine years’ imprisonment. On appeal, he argues that the court reversibly erred in refusing his jury instruction. We affirm.

At his trial, the defendant testified that sometime before 10 p.m. on September 8, 1989, he was returning to his Lisle home after a business meeting in Chicago. As he was driving on the leftmost lane of the Eisenhower Expressway, a car with its high beam headlights on approached him from behind, pulled up to within a couple of feet of his rear bumper and stayed there.

According to the defendant, as soon as traffic flow allowed, he started to move to the center lane to allow the car following him to pass. However, as he did so, the car moved into the center lane so that he needed to accelerate to complete the lane change. When the other car stayed right behind him, the defendant tapped his brakes lightly, attempting to stop the tailgating. The defendant testified that he made several subsequent lane changes but they did not enable him to “lose” the other car.

As the cars proceeded westward, the traffic thinned and the defendant considered the possibility that the other car would attempt to force him off the road. He exited the expressway at Roosevelt Road because there were lights and activity there; he was hoping to encounter a police vehicle.

At the stoplight-controlled intersection of Roosevelt and Summit Roads, the defendant entered the left-turn lane; the light was red. The “chase car” was still behind him and had its bright lights on. In his rearview mirror the defendant noticed the man from the other car get out and walk toward him. The traffic light changed to green, and the defendant drove away.

After several more turns, the defendant still had not been able to get away from the pursuing car. At the intersection of Meyers and Butterfield Roads, the defendant pulled behind another car stopped in the left-turn lane. He looked in his rearview mirror and saw the man from the pursuing car walking toward him. The defendant felt like a “sitting duck.” He picked up a hunting knife that was on his car floor and opened his door.

The defendant testified that as he was trying to exit his car, the other man punched him. The defendant was thrown off balance by a glancing blow to his head. The other man then fell onto the defendant’s knife, and the defendant pushed him away, reentered his car, and drove off. As he was leaving he observed the other car also drive away.

Another motorist observed the Meyers Road altercation between the defendant and the man in the car behind the defendant’s. He testified that as the man in the trailing car walked toward the lead car, the lead car’s driver got out and met the other man. He observed the lead car driver punch the other man. A forensic pathologist who examined the victim on the evening of September 9 opined that the victim died of a stab wound.

The defendant’s theory of the case is that he stabbed the victim with justification. In keeping with that theory, the jury was instructed, in part, as follows.

“A person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm *** or the commission of a forcible felony.” (Emphasis added.) See Ill. Rev. Stat. 1989, ch. 38, par. 7 — 1.

A further instruction received by the jury provided that “[t]he term ‘forcible felony’ means aggravated battery.” (See Ill. Rev. Stat. 1989, ch. 38, par. 2 — 8.) Additionally, the court defined the offense of “battery” and, further, instructed the jury that one commits aggravated battery when “in committing a battery, [he] intentionally or knowingly causes great bodily harm.” (See Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(a).) That last instruction was a modification of the defendant’s instruction defining aggravated battery. The full instruction offered by the defendant, but refused by the court, further provided that a person commits aggravated battery when he commits a battery “on or about a public way, public property, or public place of accommodation or amusement.” See Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(8).

The jury returned a guilty verdict and the court entered its conviction. The defendant brought this appeal.

On appeal, the defendant argues that he was deprived of the full effect of his affirmative defense of justification by the court’s denial of his instruction defining aggravated battery based on it occurring on a public way. He relies primarily on the decision in People v. Garcia (1988), 169 Ill. App. 3d 618.

In Garcia, the defendant argued that he had been deprived of his justification defense because the trial court had failed to instruct the jury that a person is justified in using deadly force “if it is necessary to prevent the commission of a forcible felony.” (Emphasis omitted.) (Garcia, 169 Ill. App. 3d at 620.) He had asserted as a defense that he had been justified in his actions, because he was attempting to prevent the forcible felony of battery on a public way. 169 Ill. App. 3d at 620-21.

The Garcia court stated that the definition of a forcible felony includes aggravated battery and that any battery on a public way is an aggravated battery under section 12 — 4 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(8)). (Garcia, 169 Ill. App. 3d at 620-21.) The court also observed that the record included evidence that the battery was committed on a public way and that it therefore fit the category of aggravated battery. The court found that given the evidence of aggravated battery, without the instruction on the justification to use deadly force to prevent the commission of a forcible felony, the defendant had been deprived of a defense that existed under the law and reversed and remanded for a new trial. 169 Ill. App. 3d at 621.

The State argues, first, that the defendant may have waived his argument by failing to provide a record as to the trial court’s reasoning underlying its rejection of his full instruction. The State relies on People v. Scott (1989), 192 Ill. App. 3d 594, where the court found that all doubts must be resolved in favor of the State because the record failed to demonstrate the defendant’s asserted error of an ex parte communication. 192 Ill. App. 3d at 599.

We find that Scott is inapposite here, where the record clearly demonstrates that the court rejected the defendant’s instruction over the defendant’s objection. The record fully enables our review of the defendant’s appellate argument, and we find no waiver.

In response to the merits of the defendant’s argument, the State first asserts that this case is distinct from Garcia, because here the court instructed the jury that deadly force could be justified to prevent the commission of a forcible felony. It further asserts that the fact that the encounter here occurred on a public way had no impact on whether the defendant feared for his life. Therefore, according to the State, the statutory aggravating factor of section 12— 4(b)(8) had no relevance to the defendant’s actual state of mind, and the justification defense cannot rationally be read to encompass action taken in response to the threat of such a minor offense.

In conclusion, the State argues that the defendant’s argument fails less because of statutory construction than because of public policy. According to the State, the legislature could not have intended the absurd result the defendant seeks — that a person could be allowed to use deadly force to prevent a possible battery merely because the incident occurred on a public way. The State argues that the privilege to use deadly force depends upon the “seriousness of the force involved” (see Ill. Ann. Stat., ch. 38, par. 7 — 1, Committee Comments, at 354 (Smith-Hurd 1989)) and not merely upon location.

We do not adopt the details of the State’s argument on the merits. Nevertheless, we reach the same conclusion reached by the State. The plain language of the Code demonstrates the legislative determination that any battery committed on a public way, despite the other details of the occurrence, is sufficiently serious to be elevated to an aggravated battery. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(8).) The Code also provides that a person is justified to use deadly force against another, if he reasonably believes that such force is necessary to prevent imminent death, great bodily harm, or the commission of a forcible felony. (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 1.) Further, however, in a statutory provision first effective January 1, 1990, and therefore not considered by the Garcia court, the Code in relevant part clearly defines “forcible felony” to include “aggravated battery resulting in great bodily harm or permanent disability or disfigurement.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 2 — 8.

Here, unlike in Garcia, the court instructed the jury that under some circumstances, including if a person has a reasonable belief that he needs to act to avoid a forcible felony, one can be justified in using deadly force. The court also defined “forcible felony” as including “aggravated battery” and partially defined “aggravated battery.” We find that it properly refused to further instruct that a battery on a public way constituted an aggravated battery.

Here there was evidence of a battery on a public way: an unarmed punch thrown at the defendant by a person who immediately prior thereto had tailgated the defendant. However, we find that the evidence could not support a jury conclusion that the defendant acted with a reasonable apprehension of an aggravated battery causing either great bodily harm or permanent disability or disfigurement. Consequently, we further find that the court did not err in denying an instruction that battery on a public way is defined as an “aggravated battery.” See Garcia, 169 Ill. App. 3d at 620.

The critical factor here is not merely that the defendant faced a battery on a public way. When the legislature designated a subset of aggravated batteries that would justify deadly force, it clearly demonstrated that it did not mean to provide a justification in the case of any battery on a public way. (See Niven v. Siqueira (1985), 109 Ill. 2d 357, 365; Ill. Rev. Stat. 1989, ch. 38, pars. 2 — 8, 7 — 1, 12— 4(b)(8).) The linchpin is the absence of evidence that the defendant faced a battery on a public way resulting in great bodily harm, permanent disability, or disfigurement. Ill. Rev. Stat. 1989, ch. 38, par. 2-8.

Based on the foregoing, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

INGLIS, P.J., and UNVERZAGT, J., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    VELDA WHITNEY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (C. Iber and Sons, Appellee).
    Third District (Industrial Commission Division)
    No. 3—91—0764WC
    Opinion filed June 10, 1992.
    Rehearing denied July 16, 1992.
    John A. Slevin, of Vonachen, Lawless, Trager & Slevin, of Peoria, for appellant.
    Robert H. Jennetten and David B. Collins, both of Quinn, Johnston, Henderson & Pretorius, of Peoria, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Petitioner filed an application for death benefits contending her husband died from an occupational disease, mesothelioma, due to his exposure to asbestos. On stipulated facts, the arbitrator granted respondent’s motion to dismiss the application as untimely because there was no evidence that decedent’s death or any disablement from a disease caused by asbestos occurred within three years from his last exposure to the substance while employed by respondent. The Industrial Commission (Commission) affirmed the arbitrator and the circuit court confirmed the Commission. Petitioner appeals. We affirm.

For purposes of the motion to dismiss, the parties stipulated that petitioner’s decedent was exposed to asbestos during his employment with respondent and his last exposure occurred in January 1977. Decedent was first diagnosed with lung cancer in August 1989 which, according to petitioner’s evidence, was caused by exposure to asbestos; he died one month later. Petitioner filed her application for death benefits in July 1990.

The motion to dismiss was granted by the arbitrator because, although petitioner filed her application within three years of death and within 25 years from the date of last exposure under section 6(c) of the Workers’ Occupational Diseases Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 172.41(c)), decedent did not suffer any disablement within three years of the date of last exposure as required by section 1(f) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 172.36(f)). At the outset, the parties agree that a claim for death benefits by a survivor is predicated on the law in effect at the date of the worker’s death, not the law at the time of the injury. A.O. Smith Corp. v. Industrial Comm’n (1985), 109 Ill. 2d 52, 57, 485 N.E.2d 335, 338.

The issue before us is whether a death claim for an asbestos-related occupational disease is barred when filed within three years from the date of death and within 25 years from last exposure when there is no disablement within three years following the date of last exposure. In Goodson v. Industrial Comm’n (1989), 190 Ill. App. 3d 16, 545 N.E.2d 975, this court held that sections 1(f) and 6(c) of the Act must be read in conjunction and that merely filing an application within the appropriate number of years after death and exposure trader section 6(c) is not sufficient if the employee does not establish disablement following last exposure within the applicable period prescribed under section 1(f). Those statutes provide:

“No compensation shall be payable for or on account of an occupational disease unless disablement, as herein defined, occurs within two [2] years after the last day of the last exposure to the hazards of the disease, except in the cases of occupational disease caused by berylliosis or by the inhalation of silica dust or asbestos dust and, in such cases, within 3 years after the last day of the last exposure to the hazards of such disease and except in the case of occupational disease caused by exposure to radiological materials or equipment, and in such case, within 25 years after the last day of last exposure to the hazards of such disease.” Ill. Rev. Stat. 1989, ch. 48, par. 172.36(f).
“In cases of death occurring within 25 years from the last exposure to radiological material or equipment or asbestos, application for compensation must be filed within 3 years of death where no compensation has been paid, or within 3 years, after the date of the last payment where any has been paid, but not thereafter.” Ill. Rev. Stat. 1989, ch. 48, par. 172.41(c).

Prior to 1984, section 6(c) of the Act provided that an application for death benefits from asbestos-related exposure had to be filed within three years after the date of death. (Ill. Rev. Stat. 1983, ch. 48, par. 172.41(c).) In 1984, the legislature amended section 6(c) to extend the period for filing the application from 3 to 25 years from exposure. (Pub. Act 83 — 1051, §2, eff. July 1, 1984 (1983 Ill. Laws 7130, 7152).) No amendment, however, was made to section 1(f), which at all relevant times has required that disablement occur within three years from last exposure.

In Goodson, this court held that proof of disablement within the three-year time frame required by section 1(f) was a condition precedent to recovery, irrespective of the timeliness of the filing of the claim under section 6(c). Section 1(f) operates as a statute of repose rather than one of limitations, and Illinois courts have not hesitated to apply repose provisions despite the acknowledgement that an individual with a long latency disease may be barred from recovery. Dickerson v. Industrial Comm’n (1991), 224 Ill. App. 3d 838, 587 N.E.2d 1045.

Claimant contends, however, that by its 1984 amendment to section 6(c) of the Act, the legislature intended to permit asbestos claimants to prove the onset of disability at any time within a 25-year window following the date of last exposure in the exact same manner as claimants alleging disease caused by exposure to radiological materials. Petitioner contends that the failure to simultaneously amend section 1(f) of the Act renders the two provisions inconsistent and it is illogical to suppose that the legislature would extend the limitations period for filing claims to 25 years subject to a three-year statute of repose.

Notwithstanding petitioner’s argument is the plain fact that the legislature did not amend section 1(f) of the Act, as it did when it amended the Act in 1969 as to exposure to radiological materials (Pub. Act 76-1941, eff. Oct. 13, 1969 (1969 Ill. Laws 4224, 4228-29), amending Ill. Rev. Stat. 1967, ch. 48, pars. 172.36(f), 172.41(c)), and this court cannot presume that its failure to act was the result of oversight. This court’s function is to interpret the law as enacted by the legislature. Our function is not to annex new provisions or substitute different ones or read into a statute exceptions, limitations or conditions which depart from its plain meaning. (Belfield v. Coop (1956), 8 Ill. 2d 293, 307, 134 N.E.2d 249, 256.) There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports. Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350, 167 N.E.2d 169,173-74.

Accordingly, applying the principles set forth in Goodson and Dickerson (see also Old Ben Coal Co. v. Industrial Comm’n (1991), 217 Ill. App. 3d 70, 576 N.E.2d 890), the Commission’s decision dismissing petitioner’s application for adjustment of claim as untimely is affirmed.

Affirmed.

RAKOWSKI, WOODWARD, LEWIS, H., and STOUDER, JJ., concur.


text:
    BERT MICHALSKI, Appellant, v. THE INDUSTRIAL COMMISSION et al. (American Nickeloid, Appellee).
    Third District (Industrial Commission Division)
    No. 3—91—0693WC
    Opinion filed June 10, 1992.
    Louis L. Bertrand, of Anthony C. Raccuglia & Associates, of Peru, for appellant.
    R.J. Lannon, Jr., of Herbolsheimer, Lannon, Henson, Duncan & Reagan, of La Salle, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant appeals from an order of the Industrial Commission (Commission) contending it erred in calculating the amount of benefits he was due for the partial hearing loss he suffered in both ears. Claimant argues that benefits should be computed as a percentage of the maximum number of weeks available for complete and total loss of hearing in both ears rather than as a proportion of the lower number of weeks provided for partial disability in each ear.

The facts are undisputed. After striking his head on an I beam while ascending a ladder, claimant suffered a partial hearing loss in both ears. The arbitrator found claimant sustained a 25% loss of hearing in his left ear and a 10% loss of hearing in his right ear. Seventy weeks of compensation were awarded as a proportion of the statutory maximum 200 weeks available for total and permanent loss of hearing in both ears. Claimant was also awarded a 2% loss of “man as a whole” benefits.

The Commission modified the arbitrator’s decision, finding that claimant suffered a 27.3% loss of hearing in his left ear and a 12.13% loss of hearing in his right ear. The Commission also concluded that in the absence of total and permanent hearing loss in both ears, benefits were properly calculated on the 50-week statutory maximum available for hearing loss in each ear. Accordingly, the Commission reduced claimant’s scheduled award to 19.71 weeks of benefits. The Commission affirmed the arbitrator’s finding of 2% loss of “man as a whole.” The circuit court confirmed the Commission’s decision.

Compensation for hearing loss is a scheduled benefit under section 8 of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, pars. 138.8(e)(14), (e)(16)), which provides:

“14. Loss of hearing of one ear — 50 weeks; total and permanent loss of hearing of both ears — 200 weeks.
* * *
16. For the permanent partial loss of use of a member *** or hearing of an ear, compensation during that proportion of the number of weeks in the foregoing schedule provided for the loss of such member *** or hearing of an ear, which the partial loss of use thereof bears to the total loss of use of such member *** or hearing of an ear.”

Claimant contends that because he suffered a simultaneous hearing loss in both ears, the proportionate share of disability in each ear should be compensated on the basis of 200 weeks, which relates to permanent and total loss of hearing in both ears. Respondent counters that the statutory language is unambiguous and 200 weeks of compensation are awarded only when a claimant establishes permanent and total loss of hearing in both ears. In respondent’s view, any lesser degree of disability, even if it occurs simultaneously in both ears, must be calculated as a percentage of the maximum 50 weeks allowable for loss of hearing in a single ear. We agree with respondent.

Our research has revealed no Illinois cases concerning this issue. By way of comparison, we note that in some jurisdictions a mathematical formula has been adopted for determining binaural hearing loss when both ears are partially injured. This is usually expressed by the following equation: five times the percentage of monaural hearing loss in the better ear, plus the percentage of monaural hearing loss in the poorer ear, all divided by six. (See Threlkeld v. Lee Way Motor Freight (Okla. 1989), 771 R2d 1012, 1013 n.l; Flint v. American Can Co. (Minn. 1988), 426 N.W.2d 190, 192 n.l.) According to those authorities, this formula or equation was apparently adopted from medical standards provided by local physicians, the American Academy of Ophthalmology and Otolaryngology, and the 1977 edition of the American Medical Association’s “Guides to the Valuation of Permanent Impairment.” (Threlkeld, 771 P.2d at 1013.) According to this authority, the amount of binaural hearing loss is not simply a matter of adding together the individual percentage of disability in each ear to arrive at a total. The formula recognizes the physiological fact that hearing in the most impaired ear will be aided by the least impaired ear so that total binaural hearing loss will equal less than the sum of the two separate losses. Threlkeld, 771 P.2d at 1013.

Not all jurisdictions, of course, have adopted this formula, and there is no contention that this is the only legitimate or even the most preferable method by which the legislature may provide benefits for this type of injury. The question then becomes what the legislature intended under the plain wording of the statute it enacted. See Pappas v. Department of Labor & Industries (1953), 41 Wash. 2d 824, 252 P.2d 311.

In examining the Illinois statute, we adhere to the familiar principles that the cardinal rule of statutory construction, to which all other canons and rules are subordinate, is to ascertain and give effect to the true intent and meaning of the legislature. (People ex rel. Hanrahan v. White (1972), 52 Ill. 2d 70, 73, 285 N.E.2d 129, 130.) In determining that intent, courts should first consider the statutory language. (Harvey Firemen’s Association v. City of Harvey (1979), 75 Ill. 2d 358, 363, 389 N.E.2d 151, 153.) Where the language is clear, it will be given effect without resorting to other aids for construction. Franzese v. Trinko (1977), 66 Ill. 2d 136,139, 361 N.E.2d 585, 587.

In our view, sections 8(e)(14) and (e)(16) of the Act are clear and unambiguous. Two hundred weeks of disability are to be awarded when a claimant suffers total and permanent loss of hearing in both ears. Permanent but only partial loss of hearing is to be awarded in that proportion of the number of weeks for loss of hearing of an ear which the partial loss of use thereof bears to the total loss of use of hearing of an ear. Nothing in this language suggests that the legislature intended that a distinction be drawn when an employee suffers a simultaneous partial loss of hearing in both ears as opposed to only a single ear.

Claimant argues, by analogy, that since injuries to other parts of the body, such as fingers, are governed by a statutory provision which states that the listed amount of benefits applies to either the loss of or the permanent and complete loss of the use of the member specified (see Ill. Rev. Stat. 1989, ch. 48, par. 138.8(e)), the same should be true for injuries to the ears. This argument cannot be sustained. The legislature has specifically seen fit to depart from this pattern by providing different maximum awards for loss of hearing based on the degree of disability. This court has previously observed:

“ ‘ “Whether or not the legislature is correct in awarding more compensation for one type of injury rather than another is not for the court to say. As was said in Sampson v. Industrial Com., 33 Ill. 2d 301, the legislature ‘has wide discretion in the exercise of the police power and absolute uniformity of treatment for injuries is impossible.’ ” ’ Weast Construction Co. v. Industrial Com. (1984), 102 Ill. 2d 337, 341, quoting Koesterer v. Industrial Com. (1970), 45 Ill. 2d 383, 385-86.” Killian v. Industrial Comm’n (1986), 148 Ill. App. 3d 975, 979, 500 N.E.2d 450, 453.

In view of the unambiguous statutory language, the Commission did not err in determining that benefits for partial hearing loss occurring simultaneously in both ears should be awarded as a proportion of the maximum number of weeks available for injury to a single ear. Accordingly, the judgment of the La Salle County circuit court is affirmed.

Affirmed.

RAKOWSKI, WOODWARD, LEWIS, H., and STOUDER, JJ., concur.


author: JUSTICE McCUSKEY

text:
    GARY JONES, Plaintiff-Appellant, v. McCOOK DRUM AND BARREL COMPANY, INC., Defendant-Appellee and Third-Party Plaintiff (Valspar Corporation et al., Third-Party Defendants).
    Third District
    Nos. 3—91—0528, 3—91—0552 cons.
    Opinion filed June 26, 1992.

      Edward G. Vogt, of Kankakee, for appellant.
    Richard A. Barrett, Jr., and Scott E. Ellefsen, both of Cassiday, Schade & Gloor, of Chicago (Kathlein K. Krider, of counsel), for appellee McCook Drum and Barrel Company.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Plaintiff appeals the dismissal of his products liability claim and the trial court’s directed verdict for defendant in plaintiff’s negligence action. We affirm.

Plaintiff, Gary Jones, filed suit against defendant, McCook Drum & Barrel Co., in negligence and products liability for injuries sustained while plaintiff was operating the landing gear on a semitrailer allegedly owned by defendant. Plaintiff was a truck driver for third-party defendants Valspar Corporation and McWhorter, Inc. (collectively, Valspar).

Valspar manufactured resins, paints and varnishes. Defendant and other companies supplied Valspar with 55-gallon steel drums for Val-spar’s finished product.

Defendant and the other drum suppliers delivered empty drums loaded on semitrailers. The semitrailers were “dropped” from a truck tractor in designated areas on Valspar’s premises. Once disconnected from the truck tractor, the forward portions of the semitrailers rested on “dolly legs,” which were lowered in position by a mechanical crank and gearbox.

Valspar’s premises contained loaded semitrailers from a number of drum suppliers, and the different suppliers’ semitrailers would be interspersed within the yard. Not all the semitrailers were labeled with the delivering company’s name. The loaded semitrailers remained in the plant yard until Valspar needed them.

On the day of the accident, plaintiff was instructed to move one of defendant’s semitrailers to the plant dock. Plaintiff drove a Valspar truck tractor to the location of the semitrailer. The front of the semitrailer was sitting too low to accommodate the truck tractor’s fifth wheel, so plaintiff attempted to increase the height of the trailer by raising the dolly legs. Plaintiff testified that he locked the gearbox for the dolly legs in “low” and turned the “z”-shaped crank clockwise from a “four o’clock” position to a “seven o’clock” position. At that point, the crank allegedly kicked back counterclockwise, causing injury to plaintiff’s right wrist and hand. Plaintiff testified that he was raised a foot and a half to two feet off the ground. Plaintiff managed to maintain his balance and did not fall. Plaintiff speculated that the counterclockwise “kickback” action resulted from the gears jamming.

Afterwards, plaintiff informed his supervisor, Bill Closkin, of the incident. Closkin then inspected the semitrailer and also attempted to raise the landing gear. Closkin testified that he operated the crank from the 6 o’clock to the 11 o’clock position, at which point the crank slipped without jamming or kicking. Closkin did not make another attempt to raise the dolly legs. Like plaintiff, Closkin could not recall any physical characteristics of the semitrailer.

Plaintiff’s amended complaint in negligence and products liability alleged the landing gear on defendant’s semitrailer was defective and that defendant should have been aware of the defect. Plaintiff further alleged defendant failed to inspect its semitrailers to determine whether the landing gear was safe and functional. Defendant filed a third-party action against Valspar, plaintiff’s employer, seeking contribution and indemnity. Defendant’s motion to dismiss the products liability count was granted.

The action proceeded to trial. At the close of plaintiff’s case in chief, defendant moved for and received a directed verdict. The court stated that plaintiff failed to sustain his burden to prove either defendant’s actual or constructive notice of the alleged defect; the existence of an industry standard governing inspection of semitrailers and defendant’s breach of the standard; or proximate causation of plaintiff’s injuries.

Plaintiff relies upon our supreme court’s decision in Huckabee v. Bell & Howell, Inc. (1970), 47 Ill. 2d 153, 265 N.E.2d 134, for the elements of his cause of action in negligence. The court in HucJcabee established that a bailor is liable in negligence to an injured third person if:

“(1) [the bailor] supplied the chattel in question, (2) the chattel was defective at the time it was supplied, (3) the defect could have been discovered by a reasonable inspection, when inspection is required ***, and (4) the defect was the proximate cause of the injury.” Huckabee, 47 Ill. 2d at 158, 265 N.E.2d at 137.

Defendant argues that the standard of liability set forth in Huckabee applies only in cases of nongratuitous bailments, and therefore does not apply in the instant case. Defendant maintains that Valspar’s use of defendant’s semitrailers constituted only a gratuitous bailment — a bailment made only for the benefit of the bailor, with no benefit to the bailee. We note, however, that while the case before the court in Huckabee involved leased equipment, the court made no other distinction between gratuitous and nongratuitous bailments. Even if a distinction were intended, we find the Huckabee court’s analysis applicable to the instant case.

Even accepting the elements of negligence in Huckabee, defendant argues that plaintiff failed to establish a prima facie case. Defendant argues that plaintiff failed to present any evidence to support the allegations that: (1) defendant supplied Valspar with the semitrailer which allegedly caused plaintiff’s injuries; (2) the semitrailer was in a defective condition; and (3) the defective condition was known to defendant or could have been discovered upon a reasonable inspection. We agree with the defendant’s analysis based upon our review of the record.

Considering the first part of the Huckabee analysis, we find that no evidence was presented that defendant supplied the allegedly defective semitrailer. Plaintiff was unable to specifically identify the subject semitrailer or to show that it was indeed supplied by defendant. Although plaintiff did testify that he was ordered by his supervisor to move one of defendant’s semitrailers, he was later unable to provide physical characteristics or markings of the actual semitrailer.

On the date of the accident, Valspar’s premises contained semitrailers owned by a number of drum suppliers. Like defendant, the other companies did not consistently label their semitrailers with the name of the company. In addition, the semitrailers were not grouped according to supplier. Thus, the location of the allegedly defective semitrailer, in the absence of other identifying characteristics, would not necessarily implicate any one owner.

We also agree with defendant that plaintiff failed to present evidence that the semitrailer he was attempting to raise was defective at the time it was supplied. The evidence does, however, support an inference that the semitrailer was operable at the time of its delivery, since plaintiff testified that when he first saw the semitrailer, it was standing on its landing gear; thus, the landing gear must at least have been operable when the semitrailer was first detached from the tractor that brought it into the yard. The record similarly reveals an absence of evidence that the semitrailer was defective at the time plaintiff was injured.

Serape Kalpakjian, a professor of mechanical engineering, testified for plaintiff as an expert witness. Professor Kalpakjian testified that the mechanical components of the landing gear, being subject to wear and tear, could become worn, leading to the crank jamming and kicking back. Kalpakjian had no opinion as to how often the landing gear could be raised and lowered before the gears required maintenance.

We note that Kalpakjian was unable to determine the precise cause of the alleged kickback. While he stated that it was possible the kickback occurred because of wear and tear, he had no way of knowing whether wear and tear or some other factor caused the landing gear to jam in this case. The only evidence presented in support of the alleged defective condition was plaintiff’s own testimony that the crank on the trailer landing gear “kicked back.”

Plaintiff also failed to show that the allegedly defective condition could have been discovered upon a reasonable inspection by the defendant. William Uhler testified that he was responsible for maintenance on defendant’s semitrailers. He testified that company employees performed much of the work on the semitrailers pursuant to defendant’s inspection program. Uhler also testified that he personally operated the landing gear of every semitrailer owned by the defendant at least once every three weeks, and that an independent contractor inspected and serviced the semitrailers on a regular basis.

Plaintiff did not attempt to contradict Uhler’s testimony, and offered no evidence of what standard of care applied. Plaintiff’s expert stated that the landing gear mechanisms were enclosed in a box and were not open to inspection without taking the box apart. No evidence was offered that a reasonable inspection would include the dis-assembly of the gearboxes. Also, plaintiff’s expert could not speculate as to how many times the landing gear could be operated before the gears would require maintenance.

Plaintiff also contends that the defendant knew or should have known of the defective crank. We disagree. The evidence showed that prior to the plaintiff’s accident, no complaints were lodged with the defendant about any malfunctioning landing gear on its semitrailers. Evidence of the absence of prior accidents is relevant to show lack of notice of a dangerous condition or that the situation or defect was in fact not hazardous. Gallick v. Novotney (1984), 124 Ill. App. 3d 756, 759. 464 N.E.2d 846. 848.

A motion for a directed verdict will be granted only in cases in which all the evidence, when viewed in a light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) Applying this standard, we conclude that the trial court properly directed a verdict for the defendant.

Plaintiff also appeals the trial court’s dismissal of his products liability claim. Plaintiff charged in his amended complaint that the landing gear was “defective from long use,” and that the alleged defect was the proximate cause of plaintiff’s injury.

Liability in tort may extend to one engaged in commerce who supplies another with a defective product which causes injury, although he is neither the manufacturer, a seller, nor a contractor. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 617, 210 N.E.2d 182, 185.) Plaintiff argues that a defective item which is loaned by a seller as a “necessary incident” to the sale of a product falls within the doctrine of strict liability. (Bainter v. Lamoine LP Gas Co. (1974), 24 Ill. App. 3d 913, 916, 321 N.E.2d 744, 746; Gilliland v. Rothermel (1980), 83 Ill. App. 3d 116, 118, 403 N.E.2d 759, 761.) Defendant maintains that it is not liable under this extension of products liability since use of the semitrailer was not incident to the defendant’s sale of the drums, but merely “a use of a convenience.” Keen v. Dominick’s Finer Foods, Inc. (1977), 49 Ill. App. 3d 480, 482-83, 364 N.E.2d 502, 504-05.

The plaintiff in Keen was injured in defendant’s grocery store when the shopping cart she was using tipped over. The court affirmed the dismissal of the products liability count. In distinguishing Bainter, the court in Keen found the shopping cart to be “only *** a convenient receptacle which the customer may temporarily utilize to move groceries,” as opposed to a “necessary concomitant of the sale.” Keen, 49 Ill. App. 3d at 482, 364 N.E.2d at 504.

Applying the rationale of the court in Keen, we find that defendant’s semitrailers are not “incident and necessary” to the sale of steel drums to Valspar, plaintiff’s employer. Valspar’s retention of defendant’s semitrailers to facilitate delivery and storage of steel drums was a mere convenience extended by the defendant. Defendant and Valspar are both users of an allegedly defective product which was placed into the stream of commerce by the parties who supplied it to defendant. Plaintiff's cause of action in products liability can only be directed against the manufacturer of the semitrailer or some party in the distributive chain other than defendant.

A cause of action should be dismissed on the pleadings only if it is clearly apparent that no set of facts can be proved which will entitle the plaintiff to recover. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504, 565 N.E.2d 654, 657.) The plaintiff’s amended complaint does not set forth a set of facts upon which a cause of action can be based alleging products liability. Accordingly, we conclude that the trial court was correct in granting defendant’s motion to dismiss plaintiff’s products liability count.

Because of our treatment of the foregoing issues, we decline to address the other issues raised in plaintiff’s brief. The judgment of the circuit court of Kankakee County is affirmed.

Affirmed.

GORMAN and SLATER, JJ., concur.